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Full text of "The casuist; a collection of cases in moral and pastoral theology"

Duquesne ^niuemty 




#ift of 

Rev. P.J. Quilter 



THE 


CASUIST 


A Coll 


ection of Cases in 


Moral and Pastoral 




Tkeology 


*=^ 


^ 


New York 

Josepk F. Wagner 

1906 



V. \ 



REMIGIUS LAFORT, S.T.L. 

Censor Librorum 

Smprimatur 

JOHN M. FARLEY, D.D. 

Archbishop of Nenv York 



New York, October 2, 1906 



Copyright, 1906, by Joseph F. Wagner, New York 



PREFACE. 

THE present volume, made up chiefly of Cases that appeared 
in The Homiletic Monthly, is issued in answer to the 
request of some of the subscribers to this magazine who have 
expressed their desire to possess these Cases in such form as to be 
easily accessible when reference to them is necessitated by the exi- 
gencies of daily missionary life. 

Many, too, have been unable to secure copies of The Homiletic 
Monthly containing these Cases, as the earlier volumes were soon 
out of print. Hence it is confidently believed that this volume will 
be welcomed by the friends and readers of The Homiletic 
Monthly^ and by priests on the mission in general. 

The Cases are plain and practical, such as come into the sphere of 
activity of the priest whose duty brings him into intimate relations 
with souls, either as confessor, or adviser, or friend. 

In fact, many of the Cases presented are original and were sent 
to the editor for solution by busy or perplexed missionaries. Others, 
taken from various periodicals, have been chosen for their practical 
value and to such Cases the author's name is appended. 

The editor desires to express his gratitude to those who have 
helped in editing this collection, especially to one whose name is 
withheld owing to the modesty and humility of its owner. 



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Digitized by the Internet Archive 

in 2010 with funding from 

Lyrasis IVIembers and Sloan Foundation 



http://www.archive.org/details/casuistcollectio01unse 



CONTENTS 



I. 

II. 
III. 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XL 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 

XVIII. 

XTX. 
XX. 

XXI. 
XXII. 

XXIII. 

XXIV. 

XXV. 

XXVI. 

XXVII. 

XXVIII. 

XXIX. 



XXX. 

XXXI. 

XXXII. 
XXXIII. 
XXXIV. 

XXXV. 

XXXVI. 



PAGE 

Necessity of General Confession for a Convert Rebaptized 

Sub Conditione 7 

Churching of Women after Illegitimate Childbirth 11 

Low Mass on Holy Thursday 17 

Legalization of an Illicit Union 22 

Saying Mass in Fermented Bread 26 

Defrauding an Insurance Company: A Case of Restitution 31 

Absolution from Censures Reserved by the Bishop 36 

Clerical Censure 44 

Communion of a Newly Baptized Convert 49 

Mixed Marriage before a Protestant Minister 51 

Hysterical Scrupulousness of a Nun 57 

The Adjusting of Mass Stipends 63 

The Conferring of a Dispensation and the Seal of Confes- 
sion 65 

Commutation of the Simple Vows of Celibacy 67 

Defraudation by a Bank Employee : A Case of Restitution 71 

A Casus of Confession y;^ 

Requiem Masses with the Blessed Sacrament Exposed. ... 75 
Means by Which to Induce Those Seriously Sick to Receive 

the Sacraments yj 

The Marriage Tie 79 

Forbidden Books 83 

A Promise a Binding Contract ? 86 

For What Persons May the Holy Sacrifice of Mass be 

Offered? , 88 

The Words of Consecration 92 

Confession by Telephone ? 94 

May Mixed Marriage Ever be Advised ? 100 

Inquiring in Confession for the Name of an Accomplice . 103 

A Case of Restitution , 108 

The Pauline Privilege ill 

May a Person be Dispensed from Hearing Mass on Sun- 
days if Going to Mass Becomes a Proximate Occasion 

of Sin? 118 

Concerning the Perusal of Private Revelations 123 

Dispensation from Impedimentum Impediens arising from 

Betrothal 128 

Doubtful Consecration and Its Consequences 131 

Dispositions Required for Saying Mass 135 

Using the Form for Infant Baptism in the Baptism of 

Adults 139 

May a Catholic Girl Act as Bridesmaid at a Non-Catholic 

Marriage ? 145 

Where should a New-born Child be Baptized? 151 

V 



CONTENTS. 



XXXVII. 

XXXVIII. 

XXXIX. 

XL. 

XLI. 

XLII. 

XLIII. 

XLIV. 

XLV. 

XLVI. 



XLVII. 

XLVIII. 

XLIX. 

L. 

LI. 

LII. 

LIII. 

LIV. 

LV. 

LVI. 

LVII. 

LVIII. 

LIX. 

LX. 

LXI. 

LXII. 

LXIII. 

LXIV. 

LXV. 

LXVI. 

LXVII. 

LXVIII. 

LXIX. 

LXX. 

LXXI. 

LXXII. 

LXXIIL 



PAGE 

A Recent Papal Dispensation "Super Matrimonio Rata et 

Non Consummato" 155 

Are Baptized Non-Catholics Bound by the Laws of the 

Church ? 160 

A Mixed Marriage in a Town Where the "Tametsi" is in 

Force 165 

A Case of Restitution 171 

Interpellation in the Casus Apostoli 177 

De Dispensatione ab Impedimenta Mixtae Religionis 180 

Sudden Sick Calls 184 

Confession of a Dying Person 189 

Marks of Friendship toward an Enemy 193 

The Obligation of Restitution, Arising from Concealing 
the Real Value of an Object and Thereby Depreciating 

Its Price 198 

Restitution to a Railroad Company 202 

Fraternal Correction 208 

A Pastor's Watchfulness over His People 213 

The Medical Secret 219 

Responsibility for Mass Stipends 228 

A Son's Duty toward His Father 233 

Appropriating Another's Ideas 237 

Incurring Ecclesiastical Censure 240 

Godparents in Baptism 243 

Right of a Bishop to Suspend a Priest without Trial 248 

The Use of Morphine 255 

The Vow to Enter an Order 257 

Restitution on Account of Incendiarism 261 

In Rebuilding a Parish Church, May the Name be Changed? 265 

Marriage Dispensation in a Case of Temporary Vows . . 268 

Interruptio Missae for an Urgent Sick Call 270 

A Case of Restitution 272 

Lay Confraternities Forbidden in Convent Chapels 274 

Casus Matrimonialis Perplexus 277 

Two Consecration Cases 279 

Marriage by Priest Without Banns and Confession 290 

The Near Occasion With Relation to Company-keeping . 292 

Confessarius Extraneus : A Case from the Law of Regulars 303 

An Invalid Absolution 311 

Impeditio Prolis 316 

A Sick Person Converted Through Hypnotic Suggestion , 320 
An Explanation of the Words: "Nemo in Utero Mains 

Clausus Baptisari Debet" 331 



THE CASUIST. 



New Casus Conscientiae of General Import, Discussed and Solved. 



I. NECESSITY OF GENERAL CONFESSION FOR 

A CONVERT REBAPTIZED SUB 

CONDITIONE. 

Mr. N., a convert to the Catholic faith, was baptized, as a child, 
in the Lutheran Church. He is now 50 years of age. There exists 
reasonable doubt as to the validity of his baptism received in the 
Lutheran Church, and for this reason he is rebaptized, conditionally, 
on his reception into the Catholic Church. But now there arises this 
question : Must Mr. N. make a full confession of all the mortal sins 
he may have committed, since his baptism as a Lutheran? Or may 
he be excused from making a full confession, because since his first 
baptism is doubtful, the sins committed after it are materia dubia 
for confession, and therefore need not necessarily be confessed. 
Would it not be sufficient for Mr. N. to confess a few sins, after 
his baptism as a Catholic, and thus receive a valid absolution, 
indirect for all his sins committed since his first baptism? It will 
be a great hardship for Mr. N. to repeat the sins of half a century, 
and it seems unreasonable to subject him to this hardship, since he 
has only doubtftdly contracted, in his first baptism, the obligation 
of confessing his sins. Moreover, Ballerini and other authors assert 

7 



8 



THE CASUIST. 



that it is not of strict necessity that converts should make a complete 
confession of their lives. Therefore we ask, may Mr. N. be ex- 
cused, under the circumstances, from making a full confession of 
his whole life? 

Answer. — Mr. N. will have to make a full confession of all his 
sins from the day of his baptism in the Lutheran Church. This may 
appear a hardship, nevertheless it is so ordained by the second and 
third plenary councils of Baltimore, and by repeated declarations 
of the Holy See. 

Lehmkuhl treats of this matter at some length, and maintains 
that after the recent decisions of the Holy See, concerning this mat- 
ter, there can remain no doubt about it. Many theologians were 
inclined to exempt converts from this obligation, when they were 
rebaptized suh conditione, on entering the Catholic Church, because 
since the validity of their Catholic baptism was doubtful, it remained 
also doubtful whether the sins committed before it were really re- 
mitted by sacramental absolution, or by the Catholic baptism. Hence 
these theologians thought that to such converts, if they confessed 
matter sufficient for absolution, although they made no general con- 
fession of their lives, absolution might be given conditionally, and 
that thus all their sins would be remitted indirectly, provided their 
first baptism in Protestantism was valid. And thus they tried to 
save the convert from the hardship of a life-confession on his en- 
tering the true Church. 

But against all this reasoning of the theologians (cf. Ball, ad Gury, 
tom. n, 231, n. 4), the Holy See has expressly declared that con- 
verts who receive conditional baptism must confess all the mortal 
sins of their past lives, quoad speciem et numerum, and be absolved 
from them conditionally. The Holy See gave this decision in 171 5, 



GENERAL CONFESSION FOR REBAPTIZED CONVERT. 9 

in the well known case of Charles Wippermann, And again, in 
1868, when the bishops of England, through Cardinal Manning, 
asked the Holy See for a ruling on the question. The case of 
Charles Wippermann, of course, was a particular case laid before 
the Holy Office. But the intention of the Holy Office, in deciding 
it, was to pass a sentence and to give a decision, which might apply 
to all cases coming under this head, and which might be regarded in 
the future as the law on this matter ; for the decree must be regarded 
as an authentic interpretation of the divine law by the Holy See, and 
not merely as a local law or as a disciplinary measure of the Church. 
The Church will not, and can not, prescribe anything as necessary 
matter for confession which is not so by divine law. In accordance 
therefore with the divine law, sins committed after a doubtfully 
valid baptism must be submitted to the power of the keys in the 
tribunal of Penance. This we learn from the positive declaration 
of the Church. Reason, likewise, confirms it. For, though one 
who is doubtfully baptized has not a certainty, but only a probability 
of receiving sacramental absolution of his sins, it does not follow 
that the obligation to confess them is only probable, and may be dis- 
regarded; for the duty of confessing and performing the penance 
received is for all more certain than that probability of receiving 
the effects of the Sacrament. Whether the penitent receives the 
sacramental effects of the absolution depends on the validity of his 
first baptism, so that doubt may be always entertained about it. 

But the duty of confessing and doing the penance admits of no 
such doubt, since it is based upon grounds morally certain and suffi- 
ciently evident. If this were not so there would be an end of all 
human obligations. By baptism men come under the jurisdiction 
of the Church. This is the external rite by which men are admitted 



lo THE CASUIST. 

as members. But no one doubts that a man remains subject to the 
Jurisdiction of a social body, into which he has been admitted by the 
acknowledged external rites, till that reception is proved to be in- 
valid. All, therefore, who have been baptized, and who were de- 
sirous of receiving baptism validly, though there exist doubt about 
the validity, are subject to the jurisdiction of the Church and to her 
laws, and are bound to comply with the divine command of confess- 
ing their sins. In other words, the doubt about the baptism has 
this effect, that the baptism may be regarded as invalid in the sense 
that it ought to be repeated conditionally, lest the man risk his 
eternal salvation; but not in the sense that a doubtfully valid bap- 
tism impairs or wipes out all a man's obligations toward the laws 
and regulations of the Church, among which is the precept of con- 
fessing all one's mortal sins committed after baptism, (cf. Schieler, 
Theory and Practice of the Confessional, p. 190.) 



II. CHURCHING OF WOMEN AFTER ILLEGITIMATE 
CHILDBIRTH. 

Bertha, an unmarried young woman, gives birth to an illegitimate 
child. Some months after its birth she brings it to the parish 
church to have it baptized. After its Baptism she requests the par- 1 
ish priest to church her. But he, already sorely troubled by the 
scandal the girl has brought on the parish, indignantly refuses to 
church her. In fact, he tells her the Church refuses to bless a 
v^oman after an illegitimate birth, that the churching of v^omen is 
intended solely for decent legitimate mothers, and that to church 
her would be to transgress the command of Our Lord, about throw- 
ing pearls before swine. Some days afterwards, however, he began 
to think that perhaps he had been too severe, that perhaps he ought 
to have churched the unfortunate woman, that scolding her now 
could do no good, since the evil was done, and a bitter price already 
paid, and the unhappy girl was not likely to repeat her experience. 
He now asks whether he ought to have churched the woman, since 
she desired to be churched ; or was it lawful for him to have refused 
her? Had she a strict right to the blessing, or was it within his dis- 
cretion whether he would church her or not, or would it have been 
unlawful to church her ? 

Answer. The Roman Ritual has nothing to say regarding the 
churching of women after an illegitimate birth. There are three 
decrees of the Congregation of Rites concerning the churching of 
women after a legitimate birth, in Gardellini's collection. In 1631, 
the Congregation of Rites answered : "quo vero ad benedictionem 
niulierum post partum, hoc esse muniis parochiale, et ad ipsum paro- 
chum spectare." Again, when it was urged, in the same year, that 



12 THE CASUIST. 

the churching of women was not de praecepto, but only ad bene esse, 
and therefore might be performed by any priest, the Congregation 
of Rites answered that the churching of women belonged to the 
rights of the parish priest, exclusively. The same answer was given 
again in 1703. 

Since the Roman Ritual says nothing about the churching ot 
women who have given birth to illegitimate offspring, and since 
nothing can be found in the decrees of the Roman Congregations 
concerning the same, we will consider the origin and nature of 
the ceremony of blessing women after childbirth. The rite has its 
origin in the prescription of the Old Law, concerning the purifica- 
tion of women after childbirth. 

In the book of Leviticus, ch. 12, we read: "Neither shall she (a 
woman after childbirth) enter into the sanctuary until the days of 
her purification be fulfilled. . . . And when the days of her 
purification are expired, for a son or for a daughter, she shall bring 
to the door of the tabernacle of the testimony, a lamb of a year old 
for a holocaust, and a young pigeon or a turtle, for sin, and shall 
deliver them to the priest; who shall offer them before the Lord, 
and shall pray for her." 

"It is evident from the words of the law," says O'Kane (Rubrics, 
ch. X.) "that it could not apply to the Blessed Virgin in whom there 
were none of the effects of ordinary childbirth, since not only in con- 
ceiving, but in giving birth to the divine Infant, she still remained 
a pure and perfect virgin. Yet we know from St. Luke that she did 
not avail herself of the exemption, but humbly complied with the 
requirements of the law. A desire of imitating the humility of the 
Blessed Virgin, induced the custom among Christian mothers of 
abstaining from entering the church for some time after childbirth. 
They then asked the blessing of the priest at the church door, and 



CHURCHING OF WOMEN. 13 

made their first visit one of thanksgiving to God for their safe 
delivery." 

The Jewish rite was intended only for legitimate wives and 
mothers, united in lawful wedlock. From which we infer that it was 
the intention of the Church, from the beginning, to confer this 
rite only on lawfully married women, after legitimate childbirth. 
Moreover, if we consider where this blessing occurs in the Roman 
Ritual, namely, immediately after the Sacrament of Marriage, as 
if pertaining to the same matter, and not among the other blessings 
of the Ritual, we seem to gather that it was intended by the Church 
only for women who have given birth to legitimate children in law- 
ful wedlock. 

Wherefore Catalanus, in his Commentary on the Roman Ritual, 
de bened. mulier. n. 17, says : 

"Reliqimm est, ut ad calcem hnjus commenfarii circa puerperas 
purificandas, et istud notemus, benedictionem post partum ei tantum 
mulieri concedi, quae ex matrimonio pepererit, nan autem illi quae 
ex fornicatione, et potissimum ex adulterio, aiit damnato alias coitu 
parturiit. Ita plane docent communiter doctores, et statutum etiam 
in synodis ac Ritualibus legi." 

Barufifaldi, commenting on the Roman Ritual, is of the same opin- 
ion (ad Rit. Rom. comm. de bened. mulier. tit. 43, n. 18). 

De Herdt also, in his work on the Liturgy, arrives at the same 
conclusion. He says : "Only those women who bring forth children 
in lawful wedlock, have a right to this blessing; so much so that 
women who beget children in adultery or fornication should not 
be permitted to receive this special blessing, but rather should be 
made to do public penance." 

"Ad hanc benedictionem jus tantum habent mulieres quae ex 
legitime matrimonio pepererunt; ita ut ad hanc admitti nequeant 



14 THE CASUIST. 

illae quae notorie ex adulterio aut fornicatione prolem pepererunt. Us 
potiiis imponenda esset publica poenitentia" (De Herdt, S. Liturg. 
juxta Rit. Rom. bened. mulier. n. ii.) 

This question was proposed to the Congregation of the Council, on 
the 1 8th June, 1859. The Congregation returned the following 
answer : 

"Ad benedictionem post partum, jus tantummodo habere mu- 
lieres, quae ex legitimo matrimonio pepererunt." 

As is evident from the text, the sacred Congregation speaks only 
of the right — jus — of legitimately married women, to this blessing. 
The Congregation says nothing as to the permissibility of giving the 
blessing to unmarried women, after an illegitimate childbirth. It 
is quite clear that an unmarried woman has no strict right or just 
claim to be churched, after giving birth to an illegitimate child. But 
the question is not one of right; the question is one of the lawfulness 
of churching women after an illegitimate birth, not whether the 
priest committed a sin or acted unjustly in refusing to church Bertha, 
but whether he would have committed a sin or transgressed the law 
of the Church, if he had churched her. 

Although the Roman Ritual may have taken occasion to speak of 
the churching of women from the Sacrament of Matrimony, still it 
remains true that the Ritual makes no distinction between legitimate 
and illegitimate childbirth, but simply describes the ceremony of 
blessing a woman after childbirth. Indeed it may even be urged 
that a woman has more need of this blessing after an illegitimate 
birth, than has a woman after a legitimate birth. For the nature and 
purpose of the ceremony is to purify the woman after confinement, 
that she may be clean again to enter the sanctuary of the Lord. And 
certainly a woman who has brought forth a child unlawfully, has 
more need of being purified before entering the church, than the 



CHURCHING OF WOMEN. 15 

woman who has borne a legitimate child. And if the blessing were 
to be omitted in the case of a notoriously illegitimate childbirth on ac- 
count of the scandal it would occasion, still exception should be 
made for the poor woman who has brought forth her child in secret, 
and who was led into sin by deception or human frailty. In some 
countries, as in Belgium, for instance, in the case of a notorious ille- 
gitimate birth, the mother may not be churched except by the arch- 
priest or dean, in order to enable the archpriest or the dean to 
discover, if possible, the identity of the father of the child, in order 
to institute legal proceedings against him. In some dioceses in 
Ireland, women who have given birth to illegitimate children are 
prohibited from being churched; in other dioceses they are re- 
stricted. In the diocese of Cashel and Emly there is this statute, dat- 
ing from 1782 : 

Nulla mulier quae extra matrimonium pepererit, ante mensem 
elapsum puriflcetur; si iterum et similiter pepererit, ante duos men- 
ses elapsos puriflcetur; ter extra matrimonium pariens, nunquam 
puriUcetur." (O'Kane, Rubrics, p. 214.) 

To conclude. Women who give birth to illegitimate children have 
no strict right to be churched, according to the decree of the sacred 
Congregation of the Council, June 18, 1859. 

Further than this there is no general law of the Church concern- 
ing the churching of women, except that it belongs to the rights of 
the parish priest. If, therefore, there exist no diocesan statute, pro- 
hibiting the churching of women after an illegitimate childbirth, the 
parish priest is at liberty to do whatever he judges best in any par- 
ticular case. 

In the case before us we are inclined to think that the pastor was 
too harsh with Bertha. The poor woman had evidently suffered a 
great deal already, and the blessing might have helped her to regain 



1 6 THE CASUIST. 

her self-respect. There is danger that she may go wrong altogether, 
now that she feels herself so dishonored and she has need of great 
kindness and forbearance to help her rehabilitate herself in the es- 
teem of the community. She would seem to be worthy of praise, 
rather than of contumely for desiring to receive the blessing post 
partum, and in the majority of such unfortunate cases kindliness 
will produce better results than severity. 



III. LOW MASS ON HOLY THURSDAY. 

We were asked, last year, shortly before Holy Week, by the pas- 
tor of a small country parish, whether it would be lawful for him 
to say a low Mass on Holy Thursday for the accommodation of his 
people, when it was practically impossible for him to carry out any 
of the other ceremonies of Holy Thursday or to say the Mass of 
the presanctified on Good Friday, or to perform any of the sacred 
rites of Easter Saturday. His people, he said, could not attend 
any other church on that day on account of the distance, nor would 
they understand why he did not say Mass on Holy Thursday, even 
though he could not hold services on Good Friday or Holy Satur- 
day. His pe®ple were very anxious to hear Mass on that day above 
all others, and to receive Holy Communion, as it was the august 
anniversary of the institution of the Blessed Sacrament, and he was 
very anxious to satisfy their desires, if it were at all lawful for him 
to do so. -• 

Answer. Gasparri, tract, can. de Smo. Euch. n. 6^, says: "The 
general principle that obtains in the Church to-day is, that Mass may 
be celebrated on any day in the year." "Haec disciplina viget hodie : 
nempe principium generale est Missam celebrari posse qualibet die." 
However, the Latin Rite excepts from this general rule, the three 
last days of Holy Week, viz.. Holy Thursday, Good Friday and Holy 
Saturday. But even as regards these three days, there is a great 
difference between Holy Thursday and the other two days. Holy 
Thursday has its own proper Mass, and is not a "dies aliturgicus." 
Indeed, formerly, three Masses were celebrated on Holy Thursday ; 
one for reconciling penitents to the Church, the other for the con- 
secration of the oils, and a third one in memory of the institution 

17 



1 8 THE CASUIST. 

of the Holy Eucharist. It is a very ancient custom in the Church, 
that the clergy abstain from saying Mass on Holy Thursday, and 
assist at this third Mass. And thus the custom was gradually in- 
troduced, that on Holy Thursday a solemn Mass was celebrated, 
and all lozv Masses were forbidden. This is now the general rule 
for the whole Church ; private Masses, or low Masses, are prohibited 
on Holy Thursday. But this rule again is not so absolute that it 
suffers no exceptions. "Porro Missas privatas feria V. majoris heh- 
domadae prohiberi est regula generalis; quae tamen non est adeo 
ahsoluta ui nunquam hac die pro Udelium commoditate Missas 
privatas celehrare liceat." (Ibid. n. 75.) 

Among the exceptions, now, that writers on the sacred liturgy 
enumerate, when it is lawful to say a low Mass on Holy Thursday, 
we find the very case as stated in the beginning of this article. 

In the year 1821, the following "Dubium" was laid before the 
Congregation of Rites : 

May the custom be tolerated that obtains in some parishes, es- 
pecially in the country, of celebrating a low Mass on Holy Thurs- 
day, when the other sacred rites, prescribed to be performed on that 
day and on Good Friday, can not be carried out, owing to the lack 
of clergy; or is the custom to be abolished? 

"An toleranda sit consuetudo vigens in quibusdam paroeciis prae- 
sertim ruralibus, celebrandi per Parochum Missam lectam Feria V. 
in Coena Domini, quin peragi valeant eadem Feria et sequenti, cae- 
terae ecclesiasticae functiones prescriptae, ob clericorum defectum; 
vel potius abolenda?" 

The Sacred Congregation of Rites made reply, on June 28, 1821, 
as follows : 

"Yes (the custom may be tolerated of saying a low Mass on Holy 
Thursday, even when it is impossible to carry out any of the other 



LOW MASS ON HOLY THURSDAY. ig 

ceremonies) with certain restrictions ; namely, that the Ordinary of 
the diocese endeavor to have the sacred rites and ceremonies of 
Holy Thursday, Good Friday and Holy Saturday carried out ac- 
cording to the small Ritual -of Benedict XHI. published in 1725, in 
all parishes where at least three or four clergy can be had ; as re- 
gards other parishes, where there are no clergy, the Ordinary may- 
permit for the accommodation of the people, that pastors, having 
first obtained permission each year, celebrate a low Mass on Holy 
Thursday, provided the low Mass be said at an earlier hour than 
the Mass in the cathedral or in the parent church." 

"Sacra eadem Congregatio re diligenter discussa, audita Con- 
sultoris veto, censuit respondendum: Affirmative, et ab mentem: 
Mens est ut locorum Ordinarii quoad paroecias in quibus haberi pos- 
sunt tres, quatuorve saltem Clerici, sacras functiones Feriis V. et 
VI. ac Sabatto majoris hebdomadae peragi studeant, servata forma 
parvi Ritualis s. m. Benedicti XIII . anno 1725 jussu editi; quoad 
alias paroecias, quae clericis destitumitur indulgere valeant ob 
populi commoditatem, ut Parochi (petita quotannis venia) Feria V. 
m Coena Domini Missam lectani celebrare possint, prius quam in 
cathedrali vel mairice, conventualis incipiat. Et ad D. Secretarium 
cum SSmo." 

This reply of the Sacred Congregation of Rites was approved and 
confirmed by Pius VH., on July 31, 1821. 

If we enquire farther, as to the reason of the present discipline of 
the Church, which forbids low Masses on Holy Thursday, we find 
that it is owing not to the liturgical quality of the day, because Holy 
Thursday has its own proper Mass, but to the reverence due to the 
most sublime mystery of the institution of the Holy Eucharist. 
This reverence is emphasized by the priests abstaining from cele- 
brating the divine mysteries, and receiving Holy Communion, 



20 THE CASUIST. 

after the manner of the laity, from the hands of the bishop or parish 
priest, who says the Mass. For thus they recall more vividly the 
scene of the Last Supper, when the disciples received the body and 
blood of our divine Saviour under the species of bread and wine, 
from the hands of the Saviour Himself. 

"For as our divine Saviour/' says Benedict XIV., "iirst partook of 
the divine mysteries Himself, and then gave to His apostles, so it is 
becoming that the priest having first received the Holy Eucharist 
himself, should thereupon distribute it to the other clergy, who are 
attached to the church where the holy sacrifice is offered" (in 
Inst. 38). 

Since, however, there are many small country churches, where it 
is impossible to carry out the other rites and ceremonies of Holy 
Week, Benedict XIII. had a small ritual* compiled for the use of 
poor parishes, which enables them to have very simple services on 
Holy Thursday and Good Friday and Holy Saturday. And this 
seems to have been the opinion of Benedict XIV., for when he was 
Archbishop of Bologna, he ordained "si vero praeter Parochum 
IN SUA PAROCHiA, saccrdos aliquis. . . . Missam privatim Fer. 
v., VI., ac Sabatto majoris hebdomadae celebrare ausus fuerit, ipsum 
graviter puniemus etc." 

Again the Sacred Congregation of Rites was asked : "An in Feria 
V. Coena Domini celebrari possit in ecclesia (non in privato valetu-, 
dinarii sacello, sed publica in ecclesia) una Missa privata propter 
infirmos, excepta solemni," answered on March 27, 1773: arbitrio 
Episcopi. 

Again the Sacred Congregation was asked: "An liceat praedicta 

Feria V. Missam canere absque alterius hostiae consecratione ei 

absque processione." The reply was : "Affirmative, juxta decretum 

Pii Papae VH., de venia saltem episcopi." D'Annibale, III., 402. 

*Appeared in English under the title: "The Ceremonies of Holy Week in 
Churches with Only One Priest." (Wagner, New York.) 



LOW MASS ON HOLY THURSDAY. 2x 

not. 20, remarks that in many places the bishop's permission is not 
asked. 

Fr. Schneider, S.J., interprets the words of the Congregation of 
Rites in the decree of June 28, 1821, "paroeciae quae clericis des- 
tituuntur" in this wise: "By parishes without clergy are meant not 
only parish churches, but other churches that rank lower than parish 
churches, but which have a priest attached to them, chapels in hos- 
pitals, in prisons, churches or chapels of small convents, of men 
or women, if they be cloistered and have their own priest and have 
the permission to reserve the Blessed Sacrament." (Manuale Sacer- 
dotum, p. 532.) 

To this Gasparri (de S S mo. Eucharistia, vol. I. n. 81) adds that 
in practice, a low Mass without any other ceremony, on Holy Thurs- 
day, may be said in the chapels of nuns who are in no sense cloistered, 
if it be inconvenient for them to go to the parish church, v. g., 
Sisters of Charity. 

To sum up, therefore, we say that in churches where there is 
only one priest, he is obliged to follow the small Ritual of Benedict 
XIII., if he wishes to hold services on the three last days of Holy 
Week. But if this is impossible, and he desires only to say a low 
Mass on Holy Thursday, and to consecrate only one host and to 
have no procession of the Blessed Sacrament, then he is, generally 
speaking, obliged to get his bishop's permission for this, each year. 



IV. LEGALIZATION OF AN ILLICIT UNION. 

Mr. X, a Catholic, left his lawful wife, some years ago, and took 
up with another woman. He had to promise this other woman that 
he would marry her as soon as his legitimate wife died. This was 
the only condition on which she would live with him. After some 
time, Mr. X's lawful wife died, but he did not marry the woman 
with whom he was living. The woman kept urging him to get 
married, but he delayed for one reason or another, until finally he 
fell dangerously sick. He called in the priest, and before making 
his confession, he told him that he had never been married to the 
woman with whom he was living, that he had begun to live with 
her while his first wife was alive, and they had promised one another 
to get married as soon as the first wife should die, but had neglected 
to do so. After this much information, the priest suggested that 
as he was sick, he would marry them right away, with a dispen- 
sation, as the woman was a non-Catholic. The sick man then 
told the priest that such a course was impossible as the impedi- 
mentuni impotentiae had existed in his case for the last few years, 
and in the opinion of several reliable physicians, his condition 
was permanent. He could not leave the woman, as every one 
thought they were husband and wife, and he did not have long to 
live. What could be done for them ? 

Answer. In the first place when Mr. X left his lawful wife, and 
went to live with another woman, under a mutual promise of 
marriage, in the event of the first wife's death, he was barred from 
ever marrying this second woman by the impedimentum criminis 
adulterii, which is a diriment impediment. If this were the only 



LEGALIZATION OF ILLICIT UNION. 23 

difficulty in the way of Mr. X's marriage to the second woman, the 
case would be very simple. All that would be required, would be a 
dispensation "super impedimento criminis adulterii" and then 
a marriage ceremony with the exchange of marriage vows. The 
woman being a non-Catholic, another dispensation would be re- 
quired, namely "dispensatio super impedimento mixtae religionis." 
But in the mean time a new impediment to the marriage has arisen, 
viz., "impedimentum dirimens impotentiae." This impediment is 
created by the law of nature, and lies outside the jurisdiction of the 
Church. The Church has no power over it, and cannot therefore 
remove it. It stands, therefore, as an effectual bar to the con- 
tracting of this marriage. But could the Church not grant a 
"sanatio in radice"? We know that the Church does sometimes 
grant a sanatio in radice even when a diriment impediment juris 
naturae has arisen in the mean time. But the Church grants a sanatio 
in radice only when there was from the beginning a real marriage, 
which was invalid on account of a diriment impediment of the 
Church's own making. 

In this event, there has been a mutuus consensus from the start, 
but this mutual consent has been prevented from producing its 
natural and legitimate result, viz., a valid marriage, by reason of 
an impediment that the Church herself, by her own legislation, 
has put in the way. The mutual consent of both parties to the 
marriage contract is supposed to be enduring at the time the 
sanatio in radice is granted. This original mutual consent is what 
the Church cures. And it is cured by the removal of the impediment 
which rendered it inoperative. As the Impediment was of the 
Church's own making, she can remove it. In which case, the mutual 
consent of the parties to the marriage immediately goes into effect 
and creates a valid marriage. It is evident that if the mutual consent 



THE CASUIST. 

was rendered inoperative in the beginning by an impediment of the 
divine law, or the natural law, the Church, having no jurisdiction, 
could not remove such impediment, and therefore could not cure 
the original consent. It is evident also, that in the case of the orig- 
inal consent being ineffective or inoperative by reason of an ecclesi- 
astical impediment, the consent can be rendered effective and opera- 
tive, or in the technical language of the law, cured, by the removal of 
the impediment even though, in the meantime, a diriment impedi- 
ment juris naturae, v. g. impotentiae, has arisen. For while this new 
impediment would act as an effectual bar to a new consent, it would 
not affect the consent that was given before it arose, and which con- 
sent is still enduring. In the case of Mr. X, if there had been a mar- 
riage ceremony performed between him and the second woman, 
immediately after the death of his first wife, the marriage would have 
been invalid propter impedimentum criminis, but still it could have 
been cured in radice, by the removal of the impedimentum criminis, 
which is of ecclesiastical origin, supposing that the consent of both 
parties is still existing. And that consent is not vitiated, to use the 
language of the law, by the subsequent natural impediment. The 
only thing that prevented that consent originally from creating a 
valid marriage was the impedimentum criminis, and the only obstacle 
that bars its way at present is that same impediment of crime. The 
subsequent impediment of "impos" would be an effective bar to a 
new or renewed consent, rendering the same impossible by a law of 
nature, but would not affect a consent given before it arose. Mr. X, 
however, did not enter into a marriage contract with this second 
woman, and therefore there existed no marriage consent which 
might be cured. He desires now, for the first time, to elicit such 
consent. But now it is too late, for nature has intervened and rend- 
ered Mr. X incapable of entering into a marriage contract, and any 



LEGALIZATION OF ILLICIT UNION. 25 

consent that he gives now is, by the law of nature, invaHd. Nothing 
can be done now to legalize, coram Deo et Ecclesia, Mr. X's mar- 
riage. What further steps should be taken by the priest, will de- 
pend on circumstances and the priest's good judgment. If Mr. X 
has but a short time to live and if, from the nature of his malady, 
there is no hope of his recovery, it might be best to leave him where 
he is, as from his statement there is no periculum peccandi to be 
feared. Under other circumstances, it would be advisable to remove 
him to a hospital. 



V. SAYING MASS IN FERMENTED BREAD. 

Titius, a priest of the Latin rite, while traveling in the Orient with 
some friends, who are lay persons, also of the Latin rite, has oc- 
casion to say Mass, now in a Greek church, now in a Latin church, 
and again in a church of some other Oriental rite, and to give Holy 
Communion to his friends. In whatever church he says Mass, he 
uses the kind of altar breads they give him, whether fermented or 
unfermented, and he gives his friends Holy Communion in the same 
kind. He claims that Leo XIII. abrogated the older discipline, 
which restricted a Latin priest to the use of unfermented bread in 
saying Mass, thus leaving a Latin priest free to say Mass in a Greek 
church ''in fermentato," and a Greek priest to say Mass in a Latin 
church, "in azymo." Titius, on his return to America, had occasion 
to go to his mission-church on Sunday to say Mass for his people, 
but by some mischance, he forgot to take along any altar breads. 
The distance to the home church was too great to permit sending 
there for altar bread and as Titius was already accustomed to say 
Mass with fermented bread, he sent to one of the neighbors for a 
piece of bread and said Mass with it, because, he said, the prohibi- 
tion to do so was only a law of Church discipline, which did not 
bind in the circumstances in which he found himself. On this oc- 
casion, he also gave Holy Communion to the faithful "in fermen- 
tato." What is to be thought of Titius' "modus agendi"? 

Answer. In the Oriental Church, the Armenians and the Maron- 
ites use unfermented bread, or asym, for the Holy Sacrifice of the 
Mass; the Greeks, the Melchites, the Chaldeans, the Syrians and 
the Copts use fermented bread. The use of fermented bread by these 
several rites of the Oriental Church, dates back to the beginning of 
Christianity. The Latin Church uses only unfermented bread, or 

26 



SAYING MASS IN FERMENTED BREAD. 27 

azym, although before the IX. or X. century, the use of fermented 
bread for the Holy Sacrifice of the Mass was not unknown in the 
Latin Church. The Council of Florence, in the decree for the union 
of the Greeks, allowed the Greeks to retain their ancient custom of 
consecrating in fermented bread, because there is no express com- 
mand of Our Divine Lord to the contrary, viz., that the Holy Eu- 
charist should be celebrated in asym. At the same time that the 
Council of Florence permitted the Greeks to continue to celebrate 
the Holy Eucharist in fermented bread, the Council issued a decree 
commanding both the Oriental and the Latin Church to adhere each 
to its respective rite in the celebration of the Holy Eucharist. This 
ruling of the Council of Florence (1440) was reaffirmed by St, 
Pius V. (1566) and later still by Benedict XIV. (1742). 

Benedict XIV. says : "Since it was ordained by the General Coun- 
cil of Florence that each and every priest should celebrate the Holy 
Eucharist according to the rite of his Church, if the Latin Church, 
then in azym, if the Greek Church, then in fermented; and since it 
has been forbidden by the Roman Pontiffs, our predecessors, for a 
Latin priest to use the Greek rite, or a Greek priest the Latin rite. 
we do now strictly forbid, under pain of permanent suspension, 
Greek priests to celebrate Mass and other divine offices or to cause 
them to be celebrated according to the Latin rite, and Latin priests 
according to the Greek rite, under any pretext whatsoever of having 
obtained faculties from the Apostolic See or its legates, or even 
from the Grand Penitentiary, for Greeks to use the Latin rite or for 
Latins to use the Greek" (Const. "Etsi pastoralis," vi.). 

This precept of the Church, commanding priests of different rites 
to conform to their own rite in all things pertaining to the celebra- 
tion of the divine mysteries, has always been very strictly interpreted 
by the theologians. St. Alphonsus, vi., n. 204, maintains that it is 



^r, THE CASUIST. 

20 

the common teaching of theologians that a Latin priest would not 
be allowed to celebrate in fermented bread, even to give a dying 
person viaticum, neither would a Greek priest be allowed to cele- 
brate in azym. The only case in which this would be lawful, would 
be to complete the Holy Sacrifice of the Mass. 

But now there arises the question : Suppose a Latin priest is trav- 
eling through a country where the Greek rite prevails, how is he to 
say Mass? What rite shall he use? Is he at liberty to use the 
Greek rite, if it suits his convenience? Theologians do not agree 
as to what such a priest may do or must do under the circumstances. 
Some theologians think that the priest ought to observe the rite of 
the country through which he travels ; thus a Latin priest ought to 
say Mass with fermented bread, if he be traveling through the 
country of the Greeks, and a Greek priest ought to say Mass with 
asym if he happened to be journeying through the country of the 
Latins (cf. Ledesma iv. p. i). 

Others, as St. Alphonsus, think that a priest on his travels may 
use either rite, according as it suits his convenience. And this view 
of the matter, the holy doctor calls communis et probabilissima (vi. 
n. 204). Others again think that a Latin priest, passing through 
a country of the Greek rite, ought to celebrate Mass in azym, if 
there be a Latin Church within reach ; otherwise he may say Mass 
in fermented bread. Gasparri, de Euch. IL n. 805, thinks that it is 
never allowed for a Latin priest to say Mass with fermented bread : 
"Vera sententia est sacerdotem Latinum- peregrinantem per loca 
Graecorum et in Graeca ecclesia celehrantem et sacerdotem Graecum 
peregrinantem per loco Latinorum et in Latina ecclesia celehrantem, 
non solum posse, sed etiam posse Latinum in fermento, Graecum in 
asymo sacriUcium eucharisticum offerre. Id enim ex constitu- 
tionibus pontiUciis quae hac de re agunt, non obscure eruitur." 



SAYING MASS IN FERMENTED BREAD. 29 

We prefer to follow the opinion of those who maintain that a 
priest, on his travels, may say Mass either with azym or with fer- 
mented bread, if he says Mass in a church of another rite than his 
own, and there be no church of his own rite in the place, because 
the pontifical constitutions, issued in regard to this matter, apply 
only to priests having a domicile or permanent dwelling in a country 
of another rite. Thus v. g. Noldin S J., de Euch. 106, b. says : 
"Sacerdos in itinere constitutus potest in locis, ubi deest ecclesia 
proprii ritus, pro lubitu vel in azymo, vel in fermentato consecrare. 
Neque obstat citata constitutio benedictina, quippe quae de illis 
tantum sacerdotibus agat, qui domicilium in loco alieni ritus habent." 

In answer, therefore, to the question whether Titius did right in 
saying Mass in a church of the Greek or Latin rite and using fer- 
mented or unfermented bread, as it suited his convenience, we would 
say that Titius ought to have gone to a church of the Latin rite, 
whenever it was possible to do so, and to have said Mass in azym. 
But whenever he found himself in a place where there was no 
church of his own rite, he was at liberty to say Mass in a Greek 
church and to use fermented or unfermented bread, whichever he 
preferred. 

To the second question, namely, whether it was lawful to say 
Mass at his mission church, after his return from his travels, in 
fermented bread, because he had no azym, we answer it was unlaw- 
ful. There is no theologian who would justify him in that. The 
precept to hear Mass on Sunday is less binding than the precept to 
says Mass in one's own rite, in one's own country. As we said above, 
not even to administer holy Viaticum, would this be allowed (cf. 
Lehmkuhl, II, n. 121, Gasparri, de Euch. n. 804). 

St. Alphonsus, VI. n. 204, writes: 

"Dubitatur 2. An in casu necessitatis, ad praebendum viaticum 



30 THE CASUIST. 

infirmo possit sacerdos Latinus consecrare in fermentato? Affirm- 
ant Mayor et Tanner, quia ut dicunt, praeceptum divinum sus- 
cipiendi Viaticum proevalere debet praecepto humano celebrandi in 
asymo. Sed negat communis et probabilior sententia, quam tenent 
Navarra, Contensou, Tournely, Antoine, Suarez, Soto, Ledesma, 
Diana, Lacroix, Layman, Tamburini, Bonacina." 

Regarding the Communion of the faithful of the different rites, 
the discipline to be followed now is contained in a decree of Leo 
XIIL, 1893 : 

"Omnibus fidelibus cujuscunque ritus sive Latini sive Orientalis, 
degentibus in locis, in quibus non sit ecclesia aut sacerdos proprii 
ritus, facultas in posterum a s. sede conceditur, s. communionem non 
modo in articulo mortis et pro paschali praecepto adimplendo, sed 
etiam quovis tempore devotionis gratia juxta ritum ecclesiae ex- 
istentis in praedictis locis, dummodo catholico sit, recipiendi." 

A year later, in 1894, the same Pontiff, Leo XIIL, extended this 
privilege to all the faithful who could not attend a church of their 
own rite, without serious inconvenience on account of the distance, 
of receiving Holy Communion in a church of another rite, in azym 
or fermented according to the rite of the church attended, provided 
said church be in communion with the Holy See. The lay people, 
therefore, who traveled with Titius in the Orient, ought to have 
gone to a Latin church for Holy Communion, if there was one in 
the place. Otherwise they might receive in any church, provided 
it were Catholic. 



VI. DEFRAUDING AN INSURANCE COMPANY. 
A CASE OF RESTITUTION. 

A father wished to have his son who was not in very good physi- 
cal condition, insured in his labor union, and fearing he would not 
be passed by the examining physician, sent another son to undergo 
the physician's examination, and a policy of several thousands of 
dollars was taken out. After paying premiums on this policy for 
several years, the father became worried about the honesty of his 
method of procuring the policy. He says that in his anxiety he went 
to a priest and told him the whole story of the policy and the priest 
told him it was all right. Recently the son died and the father 
applied for the money, but has received none as yet, and it is rumored 
that on account of the great number of recent labor troubles, the 
union in question will, in all likelihood, be unable to satisfy the 
claim. In case the union does settle the claim, either in whole or 
in part, will the father not have to forfeit all that he paid in for 
premiums, as he paid the premiums to perpetuate an evident fraud? 
And what responsibility rests on the priest, to whom the father says 
that he went for advice, and who told him that it was all right to 
continue the payments of the premiums? 

Answer. When the father wished to have his son insured in 
his labor union, he wished to enter into a true and burdensome con- 
tract with the labor union. This contract is known in moral the- 
ology as contractus aleatorius, in quo illud quod datur vel promittitur 
ab uno vel alterutro contrahente, pendet ah incerta eventu. The 
contract depends on an uncertain contingency, like the throw of the 
dice. Now one of the conditions of an aleatory contract is that the 
risk to be taken be made known honestly and without equivocation. 

31 



32 THE CASUIST. 

If the person assuming the risk is knowingly deceived by the other 
party to the contract, regarding the substance of the risk, then the 
contract is void by the law of natural justice, since the person as- 
suming the risk was deceived as to the substance of the contract. 
In a contract for life insurance, the party seeking insurance must 
not fraudulently conceal or distort the risk assumed by the company 
or labor union, but must submit to a physical examination and 
answer honestly and without equivocation all legitimate questions 
concerning his physical condition past and present. If while un- 
dergoing the examination, the applicant for life insurance conceal 
some disease or ailment, the presence of which greatly increases the 
risk assumed by the company, then he wilfully deceives the com- 
pany regarding something that is substantial to the contract and 
forfeits all claim to any money paid him, and must repair any 
damages that the company may have suffered by his action. In the 
case submitted to us, there has been practised a complete deception 
on the labor union. One person has been substituted for another. 
The labor union was made to believe, by fraud, that it was taking 
a risk on the life of A, while in reality it was taking a risk on the 
life of B. The union had no knowledge of B, nor of any risk con- 
nected with B's life, and, in fact, did not make any contract condi- 
tioned by anything connected with B. Therefore, in truth, the labor 
union had no contract at all with the father of A and B, and is 
under no obligation whatever to pay him any money, for the death 
of his son. Therefore the father may not keep the insurance 
money, if the labor union eventually pays him any. 

But now there arises a second question, concerning the premiums 
paid to the labor union by the father. Must the father forfeit these, 
because they were paid to perpetrate a fraud? 

No, he must not. The labor union has no title or claim to these 



A CASE OF RESTITUTION. 33 

premiums. The only claim the company could have to them, would 
be as payment for carrying the risk on the son's life. But, as there 
was no valid contract from the beginning, and as the labor union 
was not carrying any risk on the life of the son, it can have no 
claim to this money. We mean, of course, in foro interno, ante 
judicis sententiam. We are trying this case in the court of con- 
science. If, therefore, the father were to receive the insurance on 
the life of his son, he would be justified in subtracting the amount 
of the premiums, before making restitution to the labor union. But 
he would be obliged to reimburse the union for any expenses they in- 
curred on his son's account, as, for example, fees for medical exam- 
inations and certificates, etc. This, however, might be considered 
cancelled by the interest that the paid-in premiums earned for the 
labor union. 

We now come to the third question. The father says that when 
his conscience began to trouble him about the honesty of his method 
of having his son's life insured, he went to a priest and laid the 
whole matter before him, and the priest told him that "it was all 
right." The father had been paying the premiums on the policy 
for several years, when he went to consult the priest. And it is now 
some three years since he sought the priest's advice. 

Supposing now that the man really put the case before the priest, 
as it is stated here, and that the priest understood him rightly and 
told him that the means he used to procure the policy were honest 
(suppositions that we find considerable difficulty in making), what 
would be the priest's liability before God? How much restitution 
would he be bound to make, if any? 

The question is treated in moral theology under the heading "de 
restitutione oh consilium doctrinale nocivum." 

Whoever, by virtue of his office, is authorized to give advice, and 



34 THE CASUIST. 

through culpable ignorance, or evil intent, gives counsel that proves 
harmful either to the person seeking the advice or to a third person, 
he is bound in conscience to repair all the damages that result from 
his wrong advice. As to this there is no doubt, be the person giv- 
ing the advice or counsel a physician, or be he a lawyer, or be he a 
priest, provided only that he give the advice or counsel by virtue of 
his office, in the things pertaining to his profession, and of which the 
public has a right to demand of him that he know what is right and 
wrong, what is lawful and what is forbidden. The people have a 
strict right to require of a professional man, who by virtue of his 
profession is authorized by society to give counsel to those seeking 
it and to protect the interests of all concerned, that he possess the 
knowledge his office calls for and that he exercise reasonable dili- 
gence in the use and application of his knowledge. If at any time 
he should realize that his professional knowledge is insufficient for 
the right exercise of his office, and that harm may result to his clients 
or to other persons, by advice or counsel proceeding largely from 
unjustifiable ignorance, he is bound in conscience to suspend the 
exercise of his office or profession, until he acquire the necessary 
knowledge, and if he fail to do this, he sins against his conscience, 
and lays himself liable for all the damage that may result from his 
lack of knowledge of his profession. Now the priest who assumes 
the care of souls, is bound in conscience to know the ordinary teach- 
ings of moral theology on justice and rights, what is honest and 
dishonest in the ordinary business relations of life, when a man is 
bound to make restitution, etc. He can scarcely be ignorant of 
these things and still have the cure of souls, without grievous sin. 
His ignorance of the common laws of justice, in his actual position, 
will ordinarily amount to a gravis culpa. And therefore he must 
repair the damages resulting from it. Now, in the case which oc- 



A CASE OF RESTITUTION. 35 

cupies us at present, if the labor union should pay the insurance to 
the father of the dead boy, then when the father, less the amount of 
the premiums, has returned the money to the labor union the case 
is settled. But suppose that the labor union is unable to pay any 
part of the insurance. What is the priest's liability in that event? 
It is very simple. If, in reality, the father of the dead boy would 
have ceased paying the premiums, had the priest so advised him, and 
allowed the policy to lapse, then the priest is bound to pay to the 
father the amount of the premiums from the time he advised him 
wrongly up to the time of the son's death. For we consider his ad- 
vice to have been the efficacious cause of the continuance of these 
payments, and therefore of that much damage to the father. And 
as the advice was sought and given by virtue of his office as a priest, 
the advice was consilium doctrinde nocivum, vi officii datum, ex- 
ignorantia graviter culpabili, and the giver of it must repair the 
damages resulting from it. 



VII.— ABSOLUTION FROM CENSURES RESERVED 
BY THE BISHOP.* 

Titius, in his confession preparatory for his Easter duty, acknowl- 
edges to Caius among other things that he once committed incest 
with a relative in the second degree. From the remarks of the con- 
fessor he learns (what he did not know before) that in the diocese 
this sin is reserved to the bishop with the censure of excommunica- 
tion ; and, therefore, that he must make his confession to the bishop, 
as Caius had no faculties to absolve him. However, Titius is in 
poor health and can not go to the bishop, whose residence is a great 
distance from the place; moreover, he usually goes to Communion 
with his wife on the next day (Thursday in Holy Week), and if he 
omits it this time it will cause scandal and loss of reputation, espe- 
cially since his wife already suspects him of the very crime he has 
committed. On hearing this, Caius advises him to go to the pastor, 
who has, he says, the necessary faculties. Titius reluctantly con- 
sents, and when he tells his story to the pastor, the latter distresses 
him still farther by telling him that his faculties, which were only 
ad tempus, had recently lapsed. The pastor then consoles him by 
telling him that he can absolve him on other grounds ; since, by a 
happy chance, he had lately received faculties to absolve from Papal 
censures, a fortiori he could do the same in cases reserved to the 
bishop ; for, as the ancient theological saw has it : "Qui potest plus, 
potest etiam et minus in eodem genere." 

Quaeritur: 

I. Whether and when, outside of danger of death, an ordinary 



*Dr. Checchi, in Analecta Ecclesiastia. 
36 



ABSOLUTION FROM CENSURES RESERVED BY BISHOP. 37 

confessor can absolve a penitent from censures reserved to the 
bishop ? 

2, Whether Caius could have absolved Titius from the episcopal 
censure on the grounds that he was ignorant of its existence ? 

3. Was the pastor's course of action proper, ana was his reasoning 
correct ? 

Ad. I. The question is concerning absolution from censures re- 
served by the Bishop. A special decree of the Holy Office (June 23, 
1886) regulates the question of absolving from censures reserved to 
the Pope. But since this decree does not affect episcopal cases, we 
must here follow the ancient law of the Decretals. 

The question is, moreover, concerning absolution extra mortis 
articulum. 

The Council of Trent, treating of these matters, says : 

"Verumtamen pie admodum, ne hac ipsa occasione aliquis pereat, 
in eadem Ecclesia Dei custoditum semper fuit, ut nulla sit reservatio 
in articulo mortis, atque ideo omnes sacerdotes quoslibet poenitentes a 
quibusvis peccatis et censuris absolvere possunt ; extra quern articu- 
lum sacerdotes, cum nihil possunt in casibus reservatis, id unum 
poenitentibus suadere nitantur, ut ad Superiores et legitimos indices 
pro beneiicio absolutioms accedant." 

Accordingly any one who falls under a censure reserved by the 
bishop, and is not in danger of death, is ordinarily bound to go per- 
sonally to that superior, not being able to receive absolution from an 
ordinary confessor. However, it can easily happen that on account 
of some physical or moral impediment the penitent is lawfully hin- 
dered from going to the bishop, while at the same time there may 
be an urgent reason for his getting absolution — v. g., he can not omit 
receiving Communion or saying Mass without scandal and loss of 
reputation ; or he will have to miss his yearly Confession or his Eas- 



38 THE CASUIST. 

ter Communion ; or he will have to remain a long while in the state 
of mortal sin. In such cases neither the Church as a tender mother 
nor any superior can be considered as wishing to bind the penitent 
to something impossible, or, at least, very onerous. Therefore under 
such circumstances the faculties to absolve belong to any confessor. 
But his course of action will depend upon the nature of the case 
and the length of the time that the penitent will be hindered from 
going to the bishop. 

Let us suppose in the first place that the impediment to seeing the 
bishop is brevis temporis — that is to say, not lasting beyond six 
months. Given such an impediment and an urgent case, the con- 
fessor can absolve the penitent at least indirectly, imposing on him the 
obligation of appearing, when circumstances would permit, before the 
bishop or his representative for such cases, to be absolved directly. 

If the impediment to seeing the bishop is longi temporis (between 
six months and five years), the penitent can be absolved directly; 
with the obligation of appearing before the bishop or his delegate if 
the sin be reserved with a censure, but otherwise not. If finally the 
impediment is perpetual, or beyond five years, the reservation is con- 
sidered as simply done away with, and the penitent is absolved 
directly without obligation upon him to appear before the higher 
authorities. (Cf. S. Lig. VI. n. 585; VII. n. 85 ss. ; Bucceroni, 
De. Cens. 47 ss.) 

Ad. 2. Afiirmative : that is, Caius could have absolved Titus from 
the sin of incest reserved by the bishop with the accompanying ex- 
communication. 

If it were a question of a case reserved with censure by the 
Roman Pontiff, there would be no difficulty. For it is the common 
opinion of Doctors that reservation of such sort is not incurred by 
those who are unaware of the censure ; for papal cases are reserved 



ABSOLUTION FROM CENSURES RESERVED BY BISHOP. 39 

principally and immediately on account of the censure, from which, 
as a rule, ignorance excuses. Since in these cases the censure is 
reserved directly, and the sin to which is attached only mediately, 
therefore as the sin is indivisible from the censure, when the cen- 
sure is reserved, the sin also is reserved; and on the other hand, 
since the censure is the reason for the reservation of the sin, when 
the reason (viz., the censure) does not hold, the sin is no longer 
reserved. (Cf. S. Lig. vi, n. 580.) 

So when any case is reserved by the bishop with censure, it is 
equally certain that the censure is not incurred by one who is una- 
ware of it. But the question arises whether, granted that the person 
is excused by ignorance from the episcopal censure, the sin itself 
may not remain reserved. 

On this point theologians are divided, as may be seen in S. Lig. 
(VI. n. 581, dubit. 2) Aversa (De poenit. q. 17, Sec. II, Sec. 6) 
says: 

"Posset quidem simpliciter tolli censura, et remanere reservatio 
peccati. Realiter tamen et concomitanter ita se res habet, ut, ablata 
censura, eo ipso cesset etiam reservatio peccati . . . et ab initio si 
excusetur quis ab incurrenda censura, quamvis non a culpa, ut 
contingere potest ob ignorantiam, excusetur pariter a reservatione 
ipsius culpa,e. Quia nempe ex intentione Superioris ita coniungitur 
culpae reservatio cum censura, ut nonnisi cum ilia inveniatur. Et 
in hac doctrina communiter Doctores conveniunt." 

Among more recent writers, Card. D'Annibale (Summ., Vol. I. 
n, 340, edit. III.) expresses this opinion: 

"In casibus a Rom. Pontifice seu sibi, seu Ordinariis reservatis, 
convenit reservationem censurae esse principalem, peccati accesso- 
riam; quamobrem, si quid excusat a censura, reservatio penitus 
cessat. In his, quae Ordinarii sibi reservarunt, non satis convenit; 



40 THE CASUIST. 

sententia communior tenet, utramque reservationem aeque princi- 
palem esse; ac proinde, etsi censura exulet, peccati reservationem 
manere putant; minus communis, quae mihi verior videtur, tenet, 
in his idem iuris esse, ac in censuris a Rom. Pontifice reservatis: 
atque ideo, si censura non incurritur reservationem cessare." And 
this view is sustained by Ballerini-Palmieri (Vol. V, n. 476, Edit. 
III). 

The contrary opinion, however, is held as the better one by St. 
Alphonsus {loc cit., n. 581). For this view the following reasons 
are generally offered: 

a. Papal and episcopal cases differ in this, that in the papal cases 
the censure is reserved principally and indivisibly ; in episcopal cases 
the sin is reserved principally and per se, and the censure is attached 
to it. 

b. This is confirmed by the words in which episcopal reservations 
are expressed in the table of reservations : "Casus reservati, quibus 
est adnexa excommunicatio." 

c. The same is proved from the end of reservation, namely, that 
sinners should be more strictly bound, and that they should be de- 
terred from sin by the double reservation. 

But the answer to these reasons is not difficult. 

As for the first reason advanced, it is certain that Canon Law 
does not back up the distinction ; and moreover, the words in which 
the reason is expressed do not present an argument for it, but only 
state the opinion itself in another form. 

To the second D'Annibale answers {loc. cit. nota 25) that the 
words used in expressing these reservations on the tables do not af- 
ford an argument: "nam et nexus pignori fundus in iure dicitur 
(L. 2, de Curat, furios. dan.) et res pignori nexae dicuntur (L. 22, 



ABSOLUTION FROM CENSURES RESERVED BY BISHOP. 41 

de Jure fisci) et nemo profecto fundum vel rem accessoria pignori 
dixerit." 

Finally it is not reasonable that for less serious crimes — and such 
are those reserved by bishops when compared with those reserved 
by the Pope — ^the reservation should be more strict than for graver 
ones. We conclude therefore that the opinion which holds that 
censures reserved by the bishop are on the same level in law as those 
reserved by the Pope, is not wanting in grave probability, both in- 
trinsic and extrinsic. And in this case there were grounds enough and 
to spare for Caius to act on and absolve Titius. 

But even if Caius wished to follow the view of St. Alphonsus that 
in episcopal cases the reservation remains even though the censure 
for any reason do not hold, he could still have absolved Titius. 

For, in the first place, it is evident from the case that Titius was 
ignorant not only of the censure, but of the reservation also. Now 
although the more common opinion holds with St. Alphonsus (VI. 
n. 581) that ignorance of the reservation does not excuse, the oppo- 
site view is held by a number of theologians (Cf. Gury-Ballerini, 
De Sacramento Poenitentiae, n. 383). 

In the second place, even disregarding the point just made, there 
are other features in the case which are in favor of Titius. He is 
in poor health, and can not go personally to the bishop, who lives 
a great distance away ; moreover, since he is accustomed to receive 
•Communion on Holy Thursday, he can not omit it without scandal 
and loss of good name, especially since his wife already suspects 
him of the incest. There is question, therefore, of a penitent who, 
though not in danger of death, is legitimately impeded from going to 
the bishop ; and together with this impediment — brevis temporis ap- 
parently — there is an urgent reason why he should communicate. 
Now, as is evident from the answer given above to our first question, 



42 THE CASUIST. 

in such a matter of urgency Caius could absolve Titius saltern 
indirecte, with the obligation of going to the bishop or his delegate 
whenever circumstances would permit. I say saltern indirecte, ac- 
' cording to the more common opinion, given by St. Alphonsus (VI, n. 
585), and based on the statement of the Council of Trent (Sess. 
XIV, Cap. VIII) that ordinary priests have no power in reserved 
cases. But other theologians are of opinion that even in episcopal 
cases the absolution is always direct, even though the impediment be 
only hrevis temporis. The passage from Trent cited by St. Alphon- 
sus does not affect this, for it clearly supposes that there is ability 
to reach the superior authorities: "Extra quem articulum, sacer- 
dotes, cum nihil possunt in casibus reservatis, id unum poenitentibus 
persuadere nitantur ut ad superiores et legitimos indices pro heneHcio 
absolutionis accedant." 

These theologians admit, however, that in such cases there remains 
upon the penitent the obligation of appearing before the superior, 
not indeed for Confession, but to receive from him a fitting punish- 
ment or salutary warnings; so that the onus put upon the penitent 
is practically the same. 

Ad. 3. Just as Caius could have absolved Titus, so, too, the pastor 
could do it. Therefore his action, considered in itself, was right. 

But his line of reasoning was wrong. For no confessor, even 
though he have faculties to absolve from Papal cases, can absolve 
validly or licitly in cases which the bishop has reserved, unless he has 
special faculties to do so. Clement X put an end to the controversies 
which were formerly aroused about this matter, especially with re- 
gard to the privileges of regulars, in the Constitution Superna, which 
declares : 

"Ex facultatibus per Mare magnum aliave privilegia regularibus 
cuiuscumque ordinis, instituti, aut societatis, etiam lesu, concessis, 



ABSOLUTION FROM CENSURES RESERVED BY BISHOP. 43 

factam eis non esse potestatem in casibus ab Episcopo reservatis. . . . 
Et habentes facultatem absolvendi ab omnibus casibus Sedi 
Apostolicae reservatis, non ideo a casibus Episcopo reservatis posse 
absolvere." 

The pastor, therefore, has made a wrong application of the prin- 
ciple : "Qui potest plus, potest etiam et minus in eodem genere." This 
principle holds good when the more and the less are in the same 
proximate genus ; for instance, if one have the power of dispensing 
in certain vows, he has the power of commuting the same. So 
also if he can absolve from papal cases reserved speciali modo, he can 
absolve from those reserved simpliciter. But papal and episcopal 
reserved cases, though coming under the same remote genus of re- 
served cases, are not in the same proximate genus. 



VIII. CLERICAL CENSURE. 

Father X has been forbidden by his bishop, under pain of sus- 
pension, to be incurred ipso facto, to enter a saloon for a period of 
one year, for any purpose whatever, except to administer the last 
sacraments. This is the condition on which the faculties of the dio- 
cese have been restored to Father X. He has given the bishop 
grievous cause for complaint in the past, and caused considerable 
scandal to the faithful, and the bishop does not feel justified in 
restoring the faculties of the diocese to him, except on the condition 
stated above. Father X is careful to observe the condition, while 
within the limits of the diocese, but whenever he goes beyond the 
limits of the diocese he feels free to enter a saloon, if he chooses, 
and does not believe that he incurs the suspension. He argues that a 
bishop's authority is limited to the territory of his diocese, and 
never reaches beyond the diocese, because that would be an invasion 
of another bishop's authority, which is evidently forbidden by the 
canons of the Church. 

He desires to know whether he has incurred the censure of sus- 
pension by entering a saloon beyond the limits of the diocese, and 
whether (in case he has incurred the suspension) he has become 
irregular by violating the censure of suspension and exercising his 
office of the priesthood. 

Answer. — In answering this question, we desire to say a word 
about the reasons for which a bishop may suspend a priest. En- 
tering a saloon is not a grievous sin. Now the law says that sus- 
pension, being a grave punishment, requires a grave sin. How 
then can a bishop inflict a grave punishment on a priest who is 
guilty only of a venial sin, or, perhaps, of no sin at all? To this 



CLERICAL CENSURE. 



45 



we answer: While the thing forbidden by the bishop may be of 
lesser consequence when viewed in itself, nevertheless, it may take 
on a serious aspect, when viewed in the light of circumstances which 
make it a source of grave scandal or personal danger or subversive 
of some serious object which the bishop wishes to attain. "Proinde 
cum finis praecepti sit gravis et res praecepta sit fini huic necessaria, 
gravitas non ex materia, sed ex fine desumitur." (Schmalzgr. 1. 5, tit. 
39> n- 60.) 

But if the thing commanded or forbidden by the bishop under 
pain of suspension, be in itself of small consequence, and have only 
a slight connection with the object proposed by the bishop, then the 
transgression of the bishop's precept is only a venial sin at most, 
both in itself, and by reason of its object, and therefore induces no 
suspension. In the words of Ballerini : 

"Quamquam vero praeceptum de re per se levi, non obliget sub 
gravi atque adeo transgressio ejus nee gravem culpam nee poenam 
censurae inferat; praecipi tamen sub gravi et censura sanciri potest 
res levis in se spectata, quando gravis evadat ratione aut scandali, aut 
periculi aut finis intenti, etc. Ita v. g. excommunicatio ob clerici per- 
cussionem in se levem (levem nempe in ratione percussionis ; at non 
levem in ratione inhonorationis), ob gravem nempe irreverentiam 
status clericalis — ita juste sub censura praecipitur, ut quidam inter- 
veniant publicae processioni ad rem gravem ordinatae — item contra 
tantillum ingredientes januam monasterii — item in clericos nutri- 
entes comam. Secus tamen (S. Alp. n. 31) si res et levis in se foret 
et ad finem intentum leviter conduceret." (Vol. VII, 128.) 

When there exists doubt as to the gravity of the thing com- 
manded, or forbidden, or its close connection with the end the 
bishop hopes to attain, we must decide in favor of the bishop and 
the validity of the censure — standum est pro auctoritate Praelati 



46 THE CASUIST. 

quae est in possessione, atque adeo edicto censurae suam vim esse 
asserendam. 

There can be no doubt, therefore, that the bishop acted wholly 
within his rights, when he forbade Father X to enter a saloon, under 
pain of suspension ipso facto; because there was both scandal and 
grave danger connected with the saloon for Father X. And while 
entering a saloon may not be a grave matter in itself, still under 
the present circumstances it becomes a grave matter, and may justly 
be forbidden by the bishop under pain of suspension. 

We come now to the second question, viz. : Could Father X's 
bishop suspend him for entering a saloon outside of the diocese? 
We must distinguish here between a diocesan statute and a personal 
command given to an individual. There is question here of a per- 
sonal command. A diocesan statute is limited by the territory or 
boundaries of the diocese. It binds no one outside the diocese. A 
personal precept or command, on the contrary, follows the individual 
like his shadow, say the canonists, "haeret ossihus," no matter where 
he goes. 

St. Alphonsus, treating this question (1. 7, n. 23), gives two opin- 
ions of the theologians, one that a bishop can lawfully bind by cen- 
sure a subject of his diocese, outside the limits of the diocese, the 
other that he can not, and both of these opinions the holy Doctor 
calls probable, though the one that holds that a priest incurs sus- 
pension, even outside the diocese, seems to him the more probable. 
There are a number of theologians who hold that the power of a 
bishop is restricted to his diocese even in the matter of a personal 
command to an individual, but as Ballerini, after Laymann, points 
out, they rest for their argument on the chapter "Ut animanim, de 
constitufionibus, in 6°" of the Corpus, where there is question only 
of episcopal laws or diocesan statutes, and not of personal com- 



CLERICAL CENSURE. 47 

mands. And therefore their opinion has no soHd probability. When 
a bishop forbids a priest of his diocese to do something, under pain 
of suspension, he pronounces judgment within his own territory. 
That the judgment goes into effect outside the diocese, when the 
crime is committed outside the diocese, does not imply that there is 
any invasion of another bishop's territory, because the censure is in- 
curred ipso facto, without a trial at law or any legal proceedings 
"sine cognitione causae et sine strepitu judiciario," because, as it 
says in the Canons, " excommunicatio et quaevis censura latae sen- 
tentiae tacitam et veluti insensibilem executionem secum trahit." 
(C. Past oralis 53, de Appell.) 

The true reason why a bishop may not lawfully punish by censure 
in another bishop's diocese is that such a proceeding would be an 
invasion and a violation of another's judicial territory, which is 
strictly forbidden by the law. But where a bishop's sentence of 
censure goes into effect ipso facto, without any legal proceedings 
or trial in court there is no invasion or violation of another's juris- 
diction. 

Ballerini says that a bishop certainly has the right to suspend his 
priest for the transgression of his command, even though the priest 
transgress outside the diocese, nor can the opinion that denies this 
be said to have any other than a certain external probability, which 
suddenly vanishes, if you examine the reasons on which it rests, 
(cf. Ball. VII, loi.) 

As regards the irregularity that Father X might have incurred, 
by exercising the ministry while under censure, it will suffice to say, 
that as such an irregularity would be "irregularitas ex delicto," which 
is not incurred except where there is full knowledge and consent of 
the irregularity, it all depends on the state of Father X's con- 
science, when he exercised his ministry. If he was in good faith. 



48 THE CASUIST. 

he is not irregular. If he acted with a doubting conscience not 
knowing whether he was incurring an irregularity or not, but will- 
ing to take a chance, he incurred the irregularity, because he acted 
"cum conscientia practice dubia" and made himself liable for the 
consequences. 



IX. COMMUNION OF A NEWLY BAPTIZED CONVERT. 

A young Hebrew, Baruch, makes the acquaintance of Bertha, a 
Catholic girl, and offers to marry her. She refuses unless he agrees 
to embrace the Catholic faith. He is willing, and after receiving 
instructions he becomes actually convinced of the truth of the Cath- 
olic belief and is desirous of being baptized, this to be followed by 
marriage with Bertha. The baptism takes place on the eve of the 
marriage. Both wish to receive Holy Communion on their wedding 
day. To the officiating priest, however. Communion without previous 
Confession appears a novelty not to be countenanced, and he de- 
mands Confession from Baruch. As the newly baptized convert can 
not think of a sin since his just received baptism, the priest makes 
him confess some sins of his former life, and then gives him ab- 
solution. 

What is to be said about this case? 

Answer. 

1. A conversion on account of marriage is to be treated with the 
greatest precaution, and while the applicant wishing to become a 
convert for such reason must not be refused, he should be carefully 
examined. Even a worldly reason may lead to true conversion. 

2. A candidate for baptism must, before receiving this sacra- 
ment, confess to the Catholic faith ; he must also awaken con- 
trition for his sins, and must affirm his resolution and give promise 
to lead a true Christian life, but he does not have to confess his 
sins. Upon true repentance these are forgiven him in the sacra- 
ment of Baptism and do not need absolution by the priest. 

3. An adult, who receives baptism after being sufficiently in- 
structed, should in accordance with old established practice of the 
Church receive Holy Communion immediately, without Confession. 

49 



so 



THE CASUIST. 



4. The demand of a confession from Baruch shows lack of knowl- 
edge on the part of the priest, the more so as he let the newly bap- 
tized one confess some sins from his previous life so as to be able 
to give him sacramental absolution. Sins committed before baptism 
are no matter for absolution any more than they are for confession ; 
such absolution is invalid and — unless excused on account of ignor- 
ance — sacrilegious, just as sacrilegious as if one would pronounce 
the words of consecration over water with intention to change the 
water into the Holy Eucharist. 



X. MIXED MARRIAGE BEFORE A PROTESTANT 
MINISTER. 

Sylvia, a Catholic, makes the acquaintance of a young Protestant, 
who wishes to marry her. He insists, however, upon marriage by 
a Protestant minister. Sylvia, though warned by her confessor of 
the sinfulness of such a marriage, finally assents to his proposition. 
The following Easter she comes to Confession, seemingly repentant 
of the wrong done, and promises to use all her influence upon her 
husband; but so far she has been unable to make him promise a 
Catholic bringing up for the children, or to get his consent to a 
repetition of the marriage ceremony before a Catholic priest and 
witnesses. 

The questions are : 

1. Is the marriage valid? 

2. If not, must Sylvia leave her husband, or may she fulfil her 
conjugal duties in view of his "bona Mes," or can and must the 
marriage be validated "in radice"? 

3. May the confessor give Sylvia absolution and admit her to 
Holy Communion, and on what conditions ? 

Solution and argument. 

I. The answer to the first question depends upon whether at 
the place of the marriage ceremony or at the place of abode of 
both participants the decree of Trent on clandestinity has been 
promulgated and made binding for Protestants — i. e., promulgated 
before the Protestants formed independent religious communities. 
If this is the case, and if no general dispensation has been granted 
by the Holy See in regard to mixed marriages, such as has been 
done for some territories, or an extension of the declaration of Ben- 

51 



g2 THE CASUIST. 

edict XIV, pronouncing Protestant mixed marriages valid, as in 
Holland, then Sylvia's marriage is invalid. But if the decrees of the 
Council of Trent have never been promulgated, or not until AFTER 
the Protestants had formed independent religious communities, 
whether at the domicile of either of the contracting parties, or (in 
case the ceremony took place elsewhere) at the place of marriage, 
then Sylvia's marriage is valid, notwithstanding the Protestant cere- 
mony, because the intention of entering into true matrimony can not 
be doubted. 

2. If the marriage is valid, Sylvia may of course fulfil her duties 
in spite of the sinfulness of such marriage. Whether she must do 
so is not so unconditioned and can not be decided in a general way. 
In deciding this point it would have to be taken into consideration 
whether the refusal of the wife would be likely to induce her hus- 
band to the, for him, difficult consent to a Catholic education of the 
children. An obstinate non-compliance on the part of the wife 
would, however, very seldom have the desired effect, would on the 
contrary be productive of virulence, so that for these reasons such 
non-compliance can rarely be an obligation, and for the case in view 
it will be sufficient to regard it as permissible. 

If the marriage is invalid, neither the bona iides of Sylvia nor 
the bona fides of her husband can justify their conjugal relations 
in such a manner that the confessor can positively permit them. 
They may only be permitted as long as the validity or invalidity 
of the marriage remains in doubt even after careful investigation, 
but not if the marriage is undoubtedly invalid. Even then, how- 
ever, it is a question of prudence whether the confessor, so long as 
Sylvia believes firmly in the validity of her marriage, should not 
be silent on the subject, until the affair could with promise of success 
be settled definitely. 



MIXED MARRIAGE BEFORE A PROTESTANT MINISTER. 



53 



This raises the further question, how the matter can be finally 
settled, whether Sylvia must leave her husband, or whether the 
marriage could or should be made vaHd. If there is no prospect of 
the sanatio of the marriage, then there remains nothing for Sylvia 
but to leave her husband. Upon learning of the invalidity of her 
marriage she is obliged to do so even at the risk of coming into 
conflict with civil laws. Even in case where a sanatio of the 
marriage is not entirely out of the range of possibility, it would 
be better for the wife to leave her husband if the marriage is still 
without issue and if, on the other hand, the man persistently refuses 
to consent to a Catholic education of possible offspring. For her 
better protection Sylvia might, especially if her marriage was also a 
civil one, try and find a ground for separation under the civil law. 

The most important point is whether there is any prospect for 
a sanction of the marriage. If the husband refuses assistance from 
the priest who has the case in hand, and if he absolutely refuses 
a renewal of the marriage vow before him, then any other validation 
but a sanatio in radice is impossible, and therefore excluded. But 
will a sanatio in radice be granted? Formerly such a sanatio has 
been almost impossible in view of the persistent refusal of the 
Protestant part to consent to the Catholic education of the children. 
Recently, however, in view of the difficulty of dissolving a civil 
marriage, Rome has granted it in acute cases, if the Catholic party 
used his or her utmost efforts to have the children brought up in the 
Catholic faith. An interesting case of this kind is found in Acta S. 
Sedis Vol. xxx. pp. 382, etc. It treats of an invalid union be- 
tween a Catholic woman and a non-baptized man by civil marriage. 
The latter refused to be baptized or to guarantee a Catholic educa- 
tion of the children, but gave his wife a free hand as regards the 
actual bringing up of the children. To separate this wife from 



54 THE CASUIST. 

her husband offered too many difficulties. Rome gave a dispen- 
sation for the impediment of disparitas cultus and then vaHdated 
the marriage in radice on the condition that the wife should be 
impressed with her most rigorous duty to use her utmost efforts 
for the conversion of her husband, and to look out for the Catholic 
education of all their offspring. This case has a great similarity 
with the one now under consideration. If in Sylvia's case a disso- 
lution of the marriage offers too many difficulties, there remains 
nothing but to inquire whether Rome will consider the circum- 
stances sufficiently important to grant a sanatio in radice. 

3. The third question is, whether Sylvia can be admitted to the 
sacraments. Here we must make distinction between Communion 
and absolution. As the case must be considered a public one, Sylvia 
can not be admitted to Holy Communion until the scandal given by 
her offense has been publicly expiated and reconciliation with the 
Church has taken place. This is not done until the question of her 
invalid marriage has been settled either by separation or by valida- 
tion. Even if Sylvia should be ignorant, and meanwhile be left in 
ignorance, of the invalidity of her marriage, still she is aware of the 
grievous sinfulness which lies in a Protestant marriage ceremony for 
Catholics; she knows that that alone excludes her from the sacra- 
ments until everything has been satisfactorily settled. The same 
must of course be said of the priestly absolution, because marriage 
before a Protestant minister brings with it for the Catholic excom- 
munication, in utroque foro; however, ignorance of excommunica- 
tion may have excused the action before the conscience, and on the 
other hand the necessary reparation and public repentance, or renun- 
ciation before witnesses if necessary, may take place before the re- 
quest to Rome and the subsequent granting of a dispensation is 
accomplished. For these reasons it would not be necessary to post- 



MIXED MARRIAGE BEFORE A PROTESTANT MINISTER. 55 

pone a reconciliation with God through priestly absolution. Care 
is to be taken, that Sylvia has the sincere intention to conform to the 
requirements of the Church, The confessor must therefore insist 
upon these conditions: i. Sylvia must faithfully promise to conform 
to the requirements of Rome, where her case is to be decided. 2. She 
must faithfully promise to do her utmost to bring about the con- 
version of her husband and the CathoHc education of her children. 
3. If she is aware of the invalidity of the marriage she must in the 
meanwhile refrain from the conjugal relation, and as this would be 
difficult if she lives with her husband, she must find a pretext to go 
away from him for awhile. 4. She must, if so required by the rules 
of the diocese, publicly renounce before the pastor and witnesses her 
scandalous violation of the precepts of the Church as regards mixed 
marriages. 

If possible to obtain these points from Sylvia, then there would 
be nothing in the way of sacramental absolution, at least if the 
priest has the power to absolve in foro inferno of favor haeresis, 
otherwise a request for release from the excommunication would 
have to be made to the proper authorities — unless indeed ignorance 
has excused from excommunication. If the permission of the 
authorities would take too long to obtain, and if Sylvia would 
find it too hard to carry longer her heavy burden of sin, then the 
confessor may, without special authorization, give absolution from 
excommunication and sin, with the obligation, however, that this 
absolution will also have to be settled with Rome within a month's 
time. Sylvia would have to declare her determination to perform 
any penance decided upon for her by Rome, and she must give 
her consent that recourse be taken to Rome ; she must be made to 
understand that otherwise she would fall anew under the ban of 
excommunication. The authority to give absolution from papal 



56 THE CASUIST. 

cases "in the meantime," merely for the reason that it would be 
too hard for the penitent to wait longer, has been explicitly given 
to confessors by decree of the Holy Office of June i6, 1897, with 
approbation of the Holy Father. The most difficult point in our 
case would probably be the demand stipulated under No. 3, if Sylvia 
be aware of the invalidity of her marriage. If a temporary absence 
from home can not be arranged, and if Sylvia does not show a 
determination to employ the means necessary to make the proximate 
danger of committing sin a remote one, then there can under 
no circumstances be any absolution until everything has been properly 
put in order. 



XL HYSTERICAL SCRUPULOUSNESS OF A NUN. 

Bertha, an innocent country maiden, receives her education in a 
convent. After passing her examinations, she takes the veil and 
is employed as teacher. After a few years the Superioress is in- 
formed that Bertha shows undue attachment for some of her young 
girl pupils, thereby causing dissatisfaction to the others. The Su- 
perioress calls Bertha's attention to the error of her action, first 
in kindness, and, when this does not bring about a reform, is obliged 
to give her a severe reprimand. Bertha complains about this to her 
confessor, concluding with the words: "If this small affair, in 
which I have thought of nothing evil, is sinful, what a great sinner 
I must be ! Then I am afraid I have left out many sins in my Con- 
fessions, and none of them may have been valid." 

The confessor takes great pains to pacify Bertha, but in vain. 
In fact. Bertha's trouble and anxiety increase after each Confes- 
sion ; she becomes more and more scrupulous and answers to the ad- 
monitions and warnings of her confessor with all kinds of counter- 
arguments. The latter at length finds himself utterly helpless, and 
sends Bertha to the extraordinary confessor, the pastor of the place. 
He also takes great trouble with her for a time, but without any 
good result. Not knowing what to do, he sends Bertha to his curate, 
a zealous man of great piety. The curate, who is besides the 
teacher of Catechism in Bertha's class, gains her full confidence. 
Whatever Bertha wishes to do or not to do, she always knows how 
to get her own way. If her Superioress refuses her something, 
she obtains permission from one of her confessors. If one refuses, 
she goes to the other. If one confessor orders her to do a certain 
thing, she gets a dispensation from another one. Before the Superi- 

57 



58 THE CASUIST. 

oress she pleads the orders of the confessor, and before the con- 
fessor she asserts the authority of her Superioress. 

In this way she gradually frees herself from observance of the rule. 
Meditation, prayer, spiritual reading, all these things cause her irri- 
tation. Before Confession she gets convulsions, trembles in her 
whole body, and becomes speechless. Notwithstanding all this her 
class is in excellent condition. Her looks do not betray anything 
unusual, except by the restlessness of her eyes and the pallor of her 
face. She loses her appetite and becomes more and more peculiar in 
her actions. By and by she takes several of the sisters into her con- 
fidence. They take her part, and the discipline of the convent is 
seriously impaired. When sterner measures are taken with Bertha 
she threatens suicide. Scenes and fits before her Superioress and 
the confessors become more frequent and more violent. Daily, and 
sometimes several times a day, she writes to the chaplain: "Permit 
me to call on you," or "If you do not come to see me at once, I shall 
jump out of the window," etc. These threats of suicide Bertha 
uses to keep everybody in check. 

Finally these things become unbearable, and Bertha is sent to 
the home of her mother, a little village in the mountains. A 
physician of repute pronounces Bertha's health in perfect condi- 
tion, but declares that her nerves are somewhat overwrought. 

Dressed in the sisters' gown. Bertha goes to Confession to the 
village chaplain and employs here her old tactics. He listens to her 
repeatedly and tries in vain to pacify her with kind words. Finally 
he deals with her with severity, especially as Bertha begins to call 
several times a day at his residence, to see him about trifling mat- 
ters and scruples. His change of manner suddenly ends her con- 
vulsions, and she becomes outwardly perfectly quiet. He has for- 
feited her confidence, and she goes no longer to him but to other 



HYSTERICAL SCRUPULOUSNESS OF A NUN. 59 

priests in the neighborhood to Confession, and finding that she can 
not have her way she ceases going to Confession altogether. After 
that she writes menacing letters to her confessor at the convent, 
and obtains from him direction and advice. Repeatedly she visits 
a young physician to confide to him her scruples. After three 
months she returns to the convent, without having in any way 
improved. 
Questions'. 

1. Has Bertha received proper treatment? 

2. How should Bertha have been treated? 

3. How is she to be treated in statu quof 

I. (a) Bertha's preference for some of her pupils was sinful 
(venially) because others felt hurt by these preferences (jealousy, 
envy), and because it was also detrimental for the welfare of her 
soul; namely, an obstacle to her duty of striving after perfection, 
and also dangerous because such attachments frequently lead to 
gross sensuality and to mortal sins, and in her case would have 
led there presumably, considering her character. The admonition 
and subsequent reprimand of the Superioress were therefor^ in per- 
fect order. 

(b) It seems clear from the conduct of the first confessor, at all 
stages of the case, that from the beginning he was wanting in the 
necessary prudence and energy. He made a great mistake in giving 
Bertha dispensations and orders different from those of the other 
confessors and of her Superioress. He should either have foregone 
entirely the guidance of Bertha's conscience, or have acted under 
a perfect understanding with the others. Bertha's condition was 
aggravated by the yielding and weakness of her first confessor. 
Her impassioned, proud, and wilful character got the better of him. 
When at last entreaties and complaints were of no avail and they 



6o THE CASUIST. 

proceeded against her with energy and severity it was too late ; she 
fell into convulsions (which were undoubtedly at her command, at 
least partially), and threatened suicide. It must have greatly flat- 
tered her female pride to be able to hold four persons in check. 
Through dispensation from the rules she lost a strong support and 
the last hold for her suffering soul. 

(c) It was perfectly proper and right to send Bertha home for 
recreation, and to consult a doctor,- The surroundings of home 
and the reminiscences of her youth combined with suitable medical 
treatment, and proper spiritual guidance, should have acted in a 
quieting and healing manner. But all these remedies were without 
avail, and her recovery was frustrated through the interference of 
her first confessor. Bertha may be compared to a sick person upon 
whose ailment several physicians are unable to agree ; they give 
counteracting prescriptions, and thus bring the patient to the brink 
of the grave. 

2. The first confessor should have acquainted himself with the 
orders given to Bertha by her Superioress, and should have seen 
to it with all necessary severity that the obedience necessary in a 
convent was preserved. After handing her over to the spiritual 
care of another confessor he should have been careful not to in- 
terfere; and the pastor also should have given up the case entirely 
so soon as his assistant became Bertha's confessor. The three could 
act successfully together only with a previous understanding. 

Some one should have placed before Bertha the reasons men- 
tioned under No. i, to justify to her mind the procedure of her 
Superioress, Bertha, as an intelligent person, which she was by 
virtue of her training as a teacher, would have been impressed 
with their validity. It would have been well, and even necessary, 
to point out to Bertha the difference between imperfection and sin, 



HYSTERICAL SCRUPULOUSNESS OF A NUN. 6i 

and draw the distinct line between venial and mortal sin applied 
to her particular case. Her attention should have been drawn to the 
fact, that as a religious she had made the vow of obedience, and 
that even in trivial affairs she was obliged to carry out the orders 
of her Superioress, that especially when her actions were found 
faulty, was she required to recognize in the decision of her Superior- 
ess the will and voice of God, and that she was moreover under obli- 
gation of obedience to her confessor when in the confessional, by 
virtue of which he could forbid her to harbor any thoughts of her 
former life. She should have been told to consider such thoughts as 
temptations to be resisted vigorously, that true and genuine piety 
shows itself in humble submission and willing obedience, etc. Bertha 
would most likely have been protected against getting into her 
deplorable condition by a sensible explanation and application of 
these truths. 

3. As Bertha's nerves are affected by continuous brooding and 
subsequent excitements, it would be best to relieve her of as much 
teaching as possible, and let her pass most of her time with light 
work, in fresh air, under the guidance of a sensible and sociable 
sister. To keep her altogether away from her class, in which she 
seems interested, might cause much irritation, and prevent or retard 
her recovery. 

An important question remains to be answered : What is to be 
done in regard to her threats of suicide? The best way would 
be to treat them with contempt, and keep her, without her knowing 
it, under constant surveillance. Suicide seems here to have been 
an empty threat. Boastful people are usually great cowards. Bertha 
should be told : "If you think it too long before the dear Lord comes 
and calls you, you can not improve your case by running with open 
eyes into hell. If you, however, think that your threats of suicide 



62 THE CASUIST. 

are making any impression upon me and that you can get me thus 
to let you do as you please, you are much mistaken. Either you 
obey promptly, as it becomes a sister, or you leave the convent at 
once," etc. I would mention also that for persons suffering from 
nervous irritation a careful application of the cold water cure has 
been found beneficial for restoring their shattered health. If all 
these remedies prove without avail, the only thing left is to send 
Bertha away from the convent, as a community must not be allowed 
to suffer seriously on account of the vagaries of an individual. 



XII. THE ADJUSTING OF MASS STIPENDS. 

A certain pastor, whom we may call Practicus, has many Mass 
stipends left to his church, and is obliged to a considerable ex- 
tent to have them attended to by brother priests. As the stipend 
for some of these Masses, however, does not come up to the amount 
of one dollar, this being the usual stipend in his diocese, he has 
difficulties in placing them. He helps himself in this embarrass- 
ment by using the surplus of other more liberally feed Masses to 
make up the deficiency and to bring the stipend up to the usual 
amount. Thus he finds himself enabled to have all the Masses at- 
tended to. He satisfies his conscience with the argument that he 
does not retain any of the money, nor any part thereof, but that 
he is turning over the whole of it, though the amount of some par- 
ticular stipend is in some cases divided and goes to different hands. 

The question whether such a procedure is permissible must be 
answered with "No." 

It is the law that the full stipend — certain exceptions need not 
be taken into consideration here — must be handed over to the one 
performing the obligation, and it is not permissible to use the excess 
of one stipend to make up the deficiency of another. The person 
donating the higher stipend expects the celebrant to receive the 
full amount donated, his intention evidently being the desire that 
his larger offering bring greater benefit. St. Alphonsus writes 
on this subject as follows (Lib. vi. 322) : 

Voluntas dantis est, non solum ut missa celehretur, sed ut cele- 
hretur tali stipendio; cum enim pinguem tradit stipem, ea intentione 
dat, ut uberiorem fructum ex missa celebranda percipiat; ergo qui 
tradito minori stipendio per alium celebrare facit, peccat contra jus- 

63 



64 THE CASUIST. 

titiam, non quia defraudat fructu missae dantem eleemosynam; 
fructum enim jam hie percipit ex sua ante habita pia dispositione; 
sed quia non exsequitur dantis intentionem, qua vult, ut ilia missa, 
unde percipit fructum, tali stipendio celebretur. 

No objection could, of course, be had if the pastor hand a num- 
ber of both under as well as overpaid Masses to one and the 
same priest, in whose hands they would then average to the stipend 
usual in the diocese. 



XIII. THE CONFERRING OF A DISPENSATION AND 
THE SEAL OF CONFESSION. 

Cajus hands to his pastor a sealed letter received by him from 
Rome, which he is instructed to hand to any confessor he will 
choose. The pastor bids Cajus to make mention of the letter the 
first time he comes to Confession. Cajus, however, neglects to come 
to Confession again, though reminded of it by his pastor. Soon 
after Cajus moves into another, rather remote, parish. The pastor 
is now in a quandary what to do with the dispensation, for such was 
the contents of the letter, and is in doubt as to whether to leave 
Cajus in bona fide that everything is all right, or whether to return 
the dispensation to him for the purpose of handing it over to his 
present confessor. Would the sigillum be against that? What is 
to be done ? 

Solution: The pastor either was Cajus' confessor or he was not. 
If he was, the handing over of the dispensation took place under 
the seal of Confession ; for the subject of the dispensation was a 
secret impediment to marriage, of which the pastor knew through 
the confessional, and for the setting aside of which he himself had 
asked for the dispensation for his penitent. In this case any men- 
tion of the dispensation even to a subsequent confessor of Cajus is 
excluded. If he was not the confessor of Cajus then the handing 
over of the dispensation would stand in the same immediate con- 
nection with the confessional, if Cajus had had the intention to go 
to Confession. But Cajus evidently does not intend to do so, and 
seems to be of the opinion that with the handing over of the letter 
from Rome to a priest everything necessary had been done. Cajus 
on his part, therefore, does not make it a matter of Confession, 

65 



66 THE CASUIST. 

Nevertheless, the dispensation comes under the obligation of the 
sigillum. For whoever as superior or adviser is by a penitent made 
acquainted with a fact, receives this knowledge under the seal, 
and must preserve it under the same. This also is true of the one 
who has been entrusted with the conferring of such dispensation 
"in foro Sacramenii." Our pastor accepted the commission by re- 
ceiving the letter from Rome, and therefore put himself under 
the obligation of the seal. Hence it follows that without the ex- 
plicit consent of Cajus he can not hand the dispensation over to 
the latter's present confessor, and, furthermore, that he can only 
deliver it to Cajus himself in a way which will prevent any viola- 
tion of the secret. 

What should be done under the circumstances? The pastor 
should try and make Cajus call upon him and then give the neces- 
sary explanation. Ff Cajus will then go to Confession, the pastor can 
hand him the disper^sation under observance of all rules concerning 
it. If Cajus will not ^o to Confession, then the pastor must hand the 
letter over to him with directions to give it at his next Confes- 
sion to the confessor, so as to make him acquainted with the condi- 
tions and decisions of the Holy Father, The conditional invalidity 
of the marriage should not be mentioned so as not to take away the 
bona fides, and to avert the liability of formal sin. If Cajus should 
not appear, then the pastor should keep the letter in a safe place with 
the directions on it : "To be burned unopened in case of my death." 

If there is absolutely no hope of ever seeing Cajus personally, the 
pastor may burn the dispensation, just as would have to be done 
with the same after it had been made use of, sub excommunicatione 
intra triduum. 



XIV. COMMUTATION OF THE SIMPLE VOW OF 
CELIBACY. 

Alexius, a pious youth, has privately made a vow of perpetual 
celibacy. A number of deaths, which unexpectedly happened in his 
family, compel him to get married. For this he receives through 
the mediation of his bishop the necessary dispensation from Rome. 
This dispensation is given him through apostolic authority by his 
confessor in the confessional in this manner that his vow of celi- 
bacy is changed into the obligation of receiving the sacraments of 
Penance and Communion once a month, with the express stipulation 
that this dispensation is valid only for the duration of this marriage, 
and only in regard to his conjugal duties ; that outside of this, and 
in case of a termination of this marriage by the death of his wife, 
his vow remains in force, and for the contracting of a new marriage 
another dispensation would be necessary. Some questions may 
arise in regard to the meaning and effect of this commutation, 
which we shall try to solve in the following: 

1. Is Alexius bound to monthly reception of the sacraments, each 
time under pain of mortal sin, and, in the instance of Confession, even 
if he is not conscious of a voluntary sin since his last Confession ? 

2. Is it reserved to the Apostolic See to grant a dispensation from 
the duties which are substituted in place of the vow of celibacy ? 

3. How long will Alexius be obliged to receive the sacraments 
every month ? 

4. Is Alexius in his marital state, in his relation to his wife, freed 
from his vow of celibacy? 

I. The question whether Alexius is obliged to receive the sacra- 
ments every month, each time sub gravi, we must answer to the 

67 



68 THE CASUIST. 

effect that the reception of the sacraments as an object of a formal 
vow certainly is a materia gravis (see Marc n, 628), and that in 
our case Alexius is without any doubt bound in each separate case 
sub gravi, as a substitute for his vow. Nor is there doubt that the 
authorities in Rome have meant this obligation suh gravi, for as 
Lehmkuhl remarks (P. I. n. 480) ; The Roman courts, as a rule, 
do not grant dispensations from the vow of perpetual celibacy ex- 
cept adjuncta permagna comniutatione. 

The duty imposed in this case, to receive the sacraments every 
month in the application to each separate instance, is not lessened by 
considering all these Confessions and Communions as one whole, 
of which a single Confession and Communion would form only a 
parvitas materiae. The words once a month, put down evidently 
ad Uniendam obligationem (see Sanchez I. VIII. disp. XXXIV. 
n. 37), make each monthly duty a distinctive whole, and render 
each separate Confession and Communion a materia gravis. Even 
in the case of welding separate parts into one whole, there could 
be, as a rule, only an absolute parvitas materiae, but not a materia 
in se gravis as part of a whole be considered binding sub veniali. 

Even in case that Alexius should not be conscious of a voluntary 
sin since his last Confession, it is to be supposed from the wording 
of the rescript, as also for other reasons, that the authorities in- 
tended to bind him under any circumstances to monthly Confes- 
sion; for the finis gravis, which was the object of prescribing 
monthly Confessions, can be reached perfectly by an inclusion of sins 
previously confessed. 

2. The obligation of monthly receiving the sacraments, in com- 
mutation of the vow of celibacy, is, according to St. Alphonsus, not 
a matter reserved for the Holy Father. 

3. The question, how long will Alexius be held to the monthl) 



COMMUTATION OF THE SIMPLE VOW OF CELIBACY. 69 

reception of the sacraments, we would explain thus : In a recently 
published similar case, the petitioner, a woman, had to bind her- 
self for her whole lifetime to receive the sacraments every month. 
Lehmkuhl says (P. I. n. 480) of the vow of celibacy, even if made 
in secret, ''Romana tribunalia non consueverunt dispensare, nisi 
adjuncta permagna commutatione. . . . idque pro toio vitae 
tempore." In our case, however, the confessor was directed to 
inform Alexius that this commutation would be granted only for 
the duration of this marriage, and nothing is said of extending 
its duties for a whole lifetime. Therefore Alexius may not be 
considered bound to the monthly reception of the sacraments beyond 
the duration of his marriage. 

4. Regarding the effect of the dispensation upon his relation to 
his wife, the words of the apostolic rescript are plain: "That 
the dispensation is valid only with regard to his conjugal duties, 
but that outside of that the original vow remains in force." There- 
from arise de Ileitis et de illicitis in matrimonio for our case the 
following rules : 

{a)Quidquid est contra Unern conjugii, seu quidquid adversatur 
prolis generationi, e. g. onanistnus, pollutio voluntaria, etc., est 
grave peccatum contra castitatem et statum conjugalem, turn contra 
votum, quia dispensatio obtenta ad id, quod est contra debitum, 
minime se extendit. 

{b) Quidquid est juxta Unern conjugii, non est peccatum, quia 
pertinet ad debitum conjugale, ad quod reddendum et petendum 
Alexius a voto castitatis rite est dispensatus. 

(c) Quidquid est praeter iinem conjugii, per se, si respicias sola 
verba rescripti, in obtenta dispensatione non includitur, cum sit 
praeter debitum; sed cum, teste S. Alph. L, vi., n. 933, status 
conjugalis cohonestat copulam, etiam tactus et aspectus, si non adsii 



70 



THE CASUIST. 



periculum pollutionis, non possunt esse graviter illiciti ex Une dis- 
pensationis, idem et pro Alexius debet valere, aliter perpetuo in 
proximo graviter contra votum peccandi periculo versaretur. Igitur 
quidquid committit Alexius praeter Unern conjugii, solet esse culpa 
venialis turn contra castitatem cum contra votum, sed finis honestus 
ipsum ah utraque culpa potest excusare. 



XV. DEFRAUDATION BY A BANK EMPLOYEE. A 
CASE OF RESTITUTION. 

Marcus, an employee in a bank, is importuned by some dishonest 
fellow-employees to join them in their defraudations. They urge 
upon him that some former misconduct of his is known to them, 
and that it would make him lose his position if these matters were 
brought to the notice of his superiors. He feels that he must do their 
bidding or lose his bread and butter, for he has neither knowledge 
nor ability for another calling. In the subsequent constant state of 
committing fraud, he omits for several years to go to Confession. 
But in order to amend for his defraudations in some way, he spends 
considerable money for alms and Mass stipends. At length he hears 
a certain sermon which moves him deeply, and induces him to go to 
Confession. 

1. What has Marcus to do on account of his defraudations? 

2. What advice should he be given for the future? 

Ad I. Marcus is clearly bound to make restitution. The alms 
and Mass stipends with which he tried to appease his conscience 
can in no way be taken in account in this respect. The injured 
party is known, and restitution must be made to it, otherwise the 
wrong can not be righted (Lehmkuhl, I. 1019. Delama II. 713). 
The question with which Lehmkuhl deals in Sec. 103 1 has no bear- 
ing upon our case, because in his case a former confessor bade the 
penitent to use the ill-gotten money for pious purposes, while in our 
case Marcus has done this without having such commutation granted 
to him. 

Ad 2. As Marcus is evidently in an embarrassing position, he 
may be allowed to pretend assistance in the defraudations of the 



72 THE CASUIST. 

bank provided he has the intention and means of making resti- 
tution for the amount falHng to his share. He should keep this 
money separate from his private possessions, and he must even 
invest this money in a profitable way, so as to be able to make 
at some future time as full a restitution as possible to the de- 
frauded bank. The best way for him to pursue would be to open 
a special bank account for these defrauded sums and leave them in 
his will, in a legally unassailable form, to the rightful owner. 
This is advised to provide for the case of a premature or sudden de- 
mise. If circumstances alter, however, or if he should be pensioned 
or freed in some way from the compulsion exercised over him by 
his fellow-employees, then he must without doubt make restitution 
as soon as possible, and must not cause it to be delayed until after 
his death. 

Is Marcus obliged to make known the circumstances to his supe- 
riors ? 

Since his fellow-culprits are not subordinate to him, so that he is 
not responsible for their actions, he is not obliged in justice to 
take such a step. But when circumstances alter and he leaves his 
position, then he will be obliged to report the facts to the proper 
superiors. (Lehmkuhl I. 1013. Del. II. 705.) 



XVI. A CASUS OF CONFESSION. 

In a certain church the confessional is placed in a somewhat 
dark corner. On a certain Sunday morning the place is even darker 
than usual, owing to the rainy day. To the confessional there 
comes an aged woman, as the confessor learns by her voice and 
speech. She is just through confessing, when at the near altar 
the bell is rung for elevation. The confessor tells the woman to 
pause a little while, until after the elevation, and the woman answers, 
"Yes, father." The confessor makes the sign of the cross and 
gathers his thoughts for admonition. After the elevation he turns 
again to the woman, admonishes and consoles her, etc., gives her 
her penance and pronounces absolution, ending with his customary 
"Blessed be the Lord" to the penitent, from whom, to his great 
surprise, comes the word Amen in a man's deep voice. The con- 
fessor, quickly looking up, perceives a young man leave the con- 
fessional and disappear. How did this young man get there in 
place of the aged woman ? There is only one explanation. The aged 
woman must have misunderstood her confessor when he suggested 
to wait until after the elevation. When the confessor then made 
the sign of the cross, she probably understood this to be the absolu- 
tion. Softly she left the place, and just as softly it was taken 
by the young man, who received the absolution of the priest probably 
in some astonishment. He may have been agreeably surprised by the 
imagined fact that this confessor did not even require the telling of 
his sins. 

This would raise now the following questions: i. Has the con- 
fessor rendered himself guilty of lacsio sigilli, by addressing his 
admonition, referring to sins of the aged woman, to the young man ? 

73 



74 



THE CASUIST. 



2. Has the woman been absolved ? 3. Has the young man been ab- 
solved ? 

1. The confessor may safely be exonerated from the offense of 
laesio sigilli. It is probable that the young man was not able to get 
any sense out of the admonition addressed to him by the confessor. 
Nor is it likely that he connected the admonition with the person 
who preceded him in the confessional. It may therefore be assumed 
that the confessor has not revealed anything; but even if this be the 
case the confessor would have to be declared not guilty ob err or em 
invincibilem. He could not possibly presume that some one else had 
taken the place of the woman. 

2. The question, Has the woman been absolved ? is to be answered 
in the affirmative. Though the words "Ego te ahsolvo" were spoken 
to the young man, the "te" was nevertheless meant for the woman, 
who, we may assume, was still morally present during absolution. 
Several at least of our moralists have so held in similar cases. In 
our instance it is moreover very likely that the aged woman was 
still in church when absolution was pronounced for her. It is there- 
fore, and for these reasons, at least probable that she was absolved. 

The third question, however, must be answered in the negative. 
The young man has not been absolved. He did not conform to the 
essentials of the sacrament, he did not confess his sins, nor had the 
confessor any intention of giving him absolution. 

Suppose, however, the young man thought bona Me he had been 
absolved, and with this thought, although possibly in the state of 
mortal sin, went to receive Holy Communion? In this case it is 
to be held that through Holy Communion his mortal sins were for- 
given per accidens if he approached the Holy Sacrament bene 
attritus. 



XVII. REQUIEM MASSES WITH THE BLESSED SAC- 
RAMENT EXPOSED. 

It has been a certain fact heretofore that with the Blessed Sacra- 
ment exposed ex causa privata Requiem Masses have been permis- 
sible at the altars of a church with the exception of the altar of ex- 
position. Stipend Masses, Rorate Masses, Sodality Masses, coram 
Sanctissimo, are classed amongst the category of expositiones ex 
causa privata. Recent theological opinions have, however, inter- 
preted the decree of the R. C, of June 13, 1900, in the sense that 
Requiem Masses even at side altars are not permissible if the Blessed 
Sacrament is exposed in a church. To this interpretation the fol- 
lowing objection has been raised. The decree has reference to a cer- 
tain oratorium publicum, a public chapel, which has two altars, situ- 
ated in niches opposite each other. The priest standing at the altar 
on which the Sanctissimum is not exposed, turns his back to the 
ostensorium, a thing in itself objectionable. Something forbidden 
for a chapel, furthermore, may not be necessarily forbidden in a 
church. A decree of the S. R. C. of July 9, 1895, seems also con- 
trary to the above interpretation, as it directs that whenever the 
Forty Hours' Devotion is kept on All Souls' Day, all masses with 
the exception of a single one are to be said pro defunctis, but in 
purple vestments. It may therefore be concluded that the decision 
quoted above has reference to one certain instance and that it does 
not interfere with already existing decisions. 

This last argument is a weighty one. It is a frequent error to 
generalize decisions rendered pro casu. It is possible that a further 
inquiry would result in a general decision, conforming to the one 
pro casu, but as long as this has not been decided, the decision 

75 



76 THE CASUIST. 

pro casu can not be stated as a general law. Take, for instance, 
the jejunium naturale. Because in Lourdes a fast of four hours has 
been prescribed before the midnight Mass, many have held this to 
apply also to the Christmas Mass, but such is not the case. 

In large churches, where the case cited at the beginning of this 
article occurs not infrequently, it will therefore be safe to continue 
the previous usage, until the R. C. sees fit to pronounce universally 
on this subject. 



XVIII. MEANS BY WHICH TO INDUCE THOSE SERI- 
OUSLY SICK TO RECEIVE THE SACRAMENTS. 

Especially in parts of the country where Catholics are as yet 
sparsely settled, it often happens that by contact with irreligious 
people Catholics grow cold in their faith and neglect its practices. 
If they fall into sickness, such people are not likely to care much 
for the consolations of the church, and the priest usually meets with 
a cold reception, if he is called in at all. But even if received in a 
friendly way, he is likely to meet with a polite refusal as soon as 
he mentions Confession, etc. What can be done under such condi- 
tions to induce Catholics, weak and indifferent in faith, to the re- 
ception of the sacraments ? 

Above all, the worthy, virtuous priest will seek assistance from 
heaven, and will oflfer up his pious prayers for divine guidance 
and help for a task that seems beyond human power. Then he 
will proceed in confidence, straining at the same time all his faculties 
of mind to discover the means best suited to the needs of each 
particular instance. A safe key to the human heart is the genuine 
priestly love. Diplomacy may often be resorted to with good result. 
The former general of the Society of Jesus, P. Beckx, accomplished 
the conversion of an obstinate murderer, condemned to death, by first 
playing chess with the man and thus gradually gaining his friendship 
and confidence. Sick people in general greatly appreciate expressions 
of courtesy and sympathy; the priest may with advantage facilitate 
his task by inquiring of children about their sick father and sending 
him sympathy and good wishes, also paying a preliminary friendly 
call without mentioning anything about religion, thus gradually 
getting the patient at ease with the thought of receiving the sacra- 

77 



78 THE CASUIST. 

ments. The priest who goes about his task in this manner will have 
the gratification of greatly lessening in his parish the number of those 
who die without making their peace with God. A thing of the 
greatest importance in this connection is that frequent exhortations 
be made from the pulpit to the people to look out not only for the 
body, but also for the soul of their sick at home, to send for the 
priest before the sickness gains too much headway, reminding them 
of the difference it will make for the peace of those left behind, 
if they can think of their deceased relatives as having died consoled 
and fortified by the reception of the sacraments. 



XIX. THE MARRIAGE TIE. 

Titus, without the least scruple of conscience, has changed his 
religion a number of times, for the sake of worldly gain. At pres- 
ent, however, he is back in the Catholic Church, and to all appear- 
ances, for good. It happens now that he ruins a poor Catholic girl, 
and she becomes a mother. She insists on his marrying her. He 
agrees, but on one condition only, namely, that they both go over 
to Calvinism first, and as members of the church of Calvin, get 
married. For, says Titus, in case this marriage turns out a failure, 
and we should wish to have it dissolved, we can get a divorce very 
easily in the Calvinistic church. And so it happens. They both 
become Calvinists, and as members of the Calvinistic church are 
married by the preacher. But the marriage turns out badly. Titus 
abuses the wife, until at last she is compelled to seek a divorce in 
the civil courts. The divorce is granted and the woman leaves Titus 
for good. 

She remains single for some time, and then falls in love with a 
Catholic man, whom she finally marries before a civil magistrate. 
Some time after this she goes to the priest and begs to be received 
back into the Catholic Church, and to have this, her second marriage, 
made or declared valid by the Church. 

The question is. What is to be done under the circumstances ? 

Answer. — In order that Lucy's second marriage, i. e., with the 
Catholic man, be a possibly valid marriage at all, before God and 
the Church, it must be proven that Lucy's first marriage, i. e., Cal- 
vinistic marriage with Titus, was invalid from its very inception. For 
if the first marriage was at any time valid and consummated, then 
it can not be dissolved, quoad vinculum, by any power on earth. 

79 



8o THE CASUIST. 

However, there are good grounds for suspecting that Lucy's first 
marriage, that is, her Calvinistic marriage with Titus, was invalid 
from the very start. The view non-Catholics take of marriage, 
namely, that for specified reasons it may be dissolved, quoad vincu- 
lum, does not necessarily render the marriage of non-Catholics in- 
valid. For their prime purpose is to contract a real and true mar- 
riage. Their belief that marriage is dissoluble is only a concomitant 
error. But when the main purpose of the contracting parties is to 
contract a dissoluble marriage, then the marriage rights themselves, 
which constitute the subject matter of the marriage contract, and 
which are mutually transferred in marriage, are materially and sub- 
stantially vitiated and destroyed. There is a real and substantial 
defect present in the contract, a so-called conditio turpis, quae redun- 
dat in substantiam Matrimonii (Lehmkuhl, II., n. 688). 

According to the Canon Law, the conditiones turpes matrimonii 
substantiae contrariae, in pactum deductae, render the marriage 
null and void. In like manner, the Instruction issued under Gregory 
XVI. to the bishops of Hungary, April 30, 1841, on mixed marriages, 
holds indeed for the validity, generally, of such marriages, notwith- 
standing the false opinion of Protestants on the dissolubility of mar- 
riage; still this same Instruction calls attention to the fact that the 
Congr. of the Holy Office, October 2, 1680, to the question : "An sit 
validum Matrimonium, contractum inter Catholicam et schismaticum 
cum intentione foedandi vel solvendi matrimonium," gave the fol- 
lowing answer: "Si ista sint deducta in pactum, seu cum ista con- 
ditione sunt contracta matrimonia, sunt nulla : sin aliter, sunt valida" 
(Denziger, Enchiridion, n. 1485). 

In the case before us there is no question of a mixed marriage. 
But the grounds for its eventual invalidity are not to be sought for 
in its character of mixed marriage, as such, but in the false view of 



THE MARRIAGE TIE. 8i 

non-Catholics concerning the object and conditions of the marriage 
consent, which false view of Protestants may easily enter into and 
affect substantially the object and conditions of the marriage consent. 

This was true in the case of Titus. He stated expressly that he 
wished to contract a dissoluble marriage. It was for this express 
purpose that he joined the Calvinistic church — that his marriage 
might be more easily dissolved in case he should, in the future, de- 
sire its annulment. There is no room, therefore, to doubt the in- 
validity of the marriage between Titus and Lucy, And consequently 
there is no room for questioning Lucy's ability to contract a valid 
marriage with the Catholic man and to be received back into the 
Church. As marriages of baptized persons before a civil magistrate, 
though mortally sinful, are nevertheless valid in most places, where 
the Tridentine Decree, "Tametsi," has not been published, this 
second marriage of Lucy to a Catholic, before a civil magistrate, 
was a true marriage before God and conscience, although mortally 
sinful, provided only Lucy and the Catholic man intended, at the 
time, to enter into a true and valid marriage contract, binding 
before God and in conscience. But the whole case should be brought 
before the Ordinary of the Diocese, who will name the conditions 
on which Lucy will be reconciled with the Church, 

But if Lucy's marriage with the Catholic man before the magis- 
trate was not looked upon by them as a real marriage, but only as 
a civil ceremony, prescribed by law, as happens in some countries, 
then, of course, Lucy's marriage to the Catholic, before the magis- 
trate, was no marriage. The pastor should not lend his countenance 
to it, nor bless it, before he has laid the whole matter before the 
bishop. It is the bishop's office to determine the invalidity of Lucy's 
first marriage, with Titus, because that marriage had all the ap- 
pearances of a valid contract "in foro externo" and before the 



82 THE CASUIST. 

public. Only after competent Church authority shall have declared 
it invalid can Lucy proceed to a second marriage. It will be neces- 
sary, however, to produce satisfactory proof of Titus' intention, 
when he married Lucy, of forming a dissoluble union only. 



XX. FORBIDDEN BOOKS. 

Julius, who is a good Catholic, noticed some time back that a 
young woman, a near relative of his, who cares little about religion 
or the Church, is passionately fond of the Memoirs of Casanova, 
which she actually devours herself, and lends to others to read. In 
order to prevent the spiritual harm done by such reading, Julius 
borrows the Memoirs from the young woman and hides them 
where no one can get at them. Some time after this he hears, acci- 
dentally, that no one is allowed even to keep in his possession books 
forbidden by the Index. Thereupon he calls upon his pastor and 
consults him as to what he ought to do with these Memoirs, of 
which there are several volumes. 

Answer. — Casanova's Memoirs are on the Index, decree of July 28, 

1834. 

Therefore, i. Julius dare not keep these Memoirs in his posses- 
sion, no matter how praiseworthy his purpose, without the permis- 
sion of the Holy See. St. Alphonsus says : 

"Non excusatur is, qui librum vel in aliena domo, vel alieno nom- 
ine, vel animo non legendi, habet" (L. vii., n. 297). 

Dr. Hollweck, in his work on the Index, comments on these words 
as follows: 

"Concerning the having in one's possession books forbidden by 
the Index, we must emphasize the fact that it makes no differ- 
ence whether you keep the book in your own possession or give it 
to others to keep for you; whether the book belongs to you or to 
somebody else ; whether you intend to read it or no. Moreover, you 
must have had the book in your possession for a considerable length 
of time before you become guilty of a mortal sin, and incur the cen- 

83 



84 THE CASUIST. 

sure attached to the transgression of the law. St. Alphonsus calls 
one or two days parvitas temporis (1. c. n. 295). The Popes have 
usually named eight days as the limit of time for giving up bad 
books. With this fact in mind, it may be safely said that one must 
keep in one's possession a forbidden book over one week in order 
to be adjudged guilty of a serious infraction of the law and to have 
incurred the censure attached to it. One may keep the forbidden 
book in one's possession, even longer than one week, if one does 
so in order to await a more favorable opportunity of turning the 
book over to the bishop or vicar-general, or to get the necessary 
permission to keep it. But one should not keep the book longer 
than one month, for a month is ample time to get the necessary 
faculties from the Holy See." Thus far Dr. Hollweck. 

2. Julius may not burn the book, or otherwise destroy it, because 
it is not his property. 

3. Although the borrower or depositary of another's property is 
bound to restore the same to the owner upon his demand, or at the 
stipulated time, still in the case of Julius there is the exception to 
be made, of which St. Thomas writes : "Quando res restituenda ap- 
paret esse graviter nociva ei cui restitutio facienda est, vel alteri, non 
debet ei tunc restitui, nee tamen debet ille, qui retinet sic rem 
alienam, sibi appropriare sed vel reservare, ut congruo tempore 
restituat, vel etiam alii tradere tutius conservandam" (2, 2, q. 62, 
ad. I). 

St. Alphonsus, Lessius, Lugo, and others, teach the same. 

Julius would sin against charity, or the love he owes his neighbor, 
if, without more ado, he were to return the forbidden book to the 
owner, foreseeing the harm that would come to her or to others from 
its perusal. We say, "zvithout more ado" because if Julius can not 
refuse to return the forbidden book to its owner, without serious 



FORBIDDEN BOOKS. 85 

inconvenience to himself, "sine gravi incommodo," he may return 
the book at once (Cf. Marc, n. 1020). 

4. Since, therefore, JuHus may not return the book to its rightful 
owner, simply upon her demand, and since he may not keep it any 
longer in his possession without the permission of the Church au- 
thorities, he should either get the permission to retain the book in 
his own possession or he should give it to some third person for 
safe keeping who has the faculty to retain forbidden books. 

Perhaps, in the course of time, the young woman may be pre- 
vailed upon to waive her right to the book, and no longer to con- 
sider it her own property. 



XXI. A PROMISE A BINDING CONTRACT? 

Claudina promises her husband, on the day of their marriage, that 
she will make over to him the sum of three thousand dollars, as 
soon as he shall have served out the term of his enlistment in the 
army. In the meanwhile, however, her husband becomes addicted 
to drink and before the term of his enlistment has expired is a 
confirmed drunkard. Claudina refuses to keep her promise. She 
proposes to keep the money herself and use it for her children. Her 
husband, however, insists that she keep her promise to him and give 
him the money. What is Claudina to do under these circumstances ? 

Solution, — Claudina's promise has all the necessary qualities of a 
binding contract, and it imposes on her, therefore, the obligation of 
keeping it, in the event of the husband complying with the condi- 
tions of the promise. As the case stands, it is not clear what use 
Claudina's husband is to make of the money once it comes into his 
possession. If Claudina intended that her husband should be per- 
fectly free in the use of the money for whatever purpose he might 
choose, and this seems to have been the case, then it is certain that 
Claudina would never have made the promise had she foreseen the 
circumstance of her husband becoming a drunkard. The fact that 
she postponed the fulfilment of her promise until her husband should 
have completed the term of his enlistment seems to prove that she 
made this reservation expressly. Since she intended, therefore, 
to bind herself by her promise only on the condition that her hus- 
band should remain a good, decent man, she is, under the circum- 
stances, absolved from all further obligation toward her husband in 
the matter. For a so-called "contractus gratuitus unilateralis" is 
considered void when the circumstances of the person or thing have 

86 



A PROMISE A BINDING CONTRACT? 87 

so changed that it may be taken for granted that from the start the 
obHgation imposed by the contract was not to be extended to this 
case. The wife may rest perfectly easy in her conscience, and all 
the more so, since she intends to use the money for her children, 
whereas, the father by his drinking is prevented from taking the 
necessary care of his family. 

But should not the wife, in the interest of domestic peace, give 
way to her husband and let him have the money ? No ; because it is 
not she, but the husband who is disturbing the peace of the family, 
and if she gives him the money promised she only lends him new 
means for indulging his habit of drink and further destroying the 
peace of the home. 

Only in case the conveying of the money to the husband did not 
give him the free disposition of it, neither now nor later, could the 
wife be advised to make it over to him. But in that case the hus- 
band would have no further interest in the matter. The wife may, if 
she pleases, renew her promise to her husband, but make its fulfil- 
ment depend on his thorough and sincere reform. 



XXII. FOR WHAT PERSONS MAY THE HOLY SACRI- 
FICE OF THE MASS BE OFFERED? 

Titius, a parish priest, receives from a pious Catholic lady three 
Mass stipends, with the request that he say three Masses for the 
following three intentions: One for her brother, who died without 
baptism, although he was a man of upright life, who feared God and 
departed from evil ; one for an Episcopalian friend, who died in 
good faith and to all appearances in the grace of God ; and one for 
the soul of her late husband, who was an "excommunicatus vitan- 
dus," who at the moment of death gave unmistakable signs of 
repentance, although on account of the suddenness of his taking off, 
there was no time to call a priest. 

Titius accepted the stipends and said three Requiem Masses, in- 
serting the names of the dead persons in the orations of the Mass. 
When taken to task for this by another priest, Titius replied that 
the sacrifice of the Mass may be offered up for all those for whom 
the sacrifice of the Cross was offered up. As Christ died for all 
men, therefore Mass may be said for all men. 

1. For whom may the Holy Sacrifice of the Mass be offered? 

2. Did Titius do right in this matter, and what is to be said about 
the reason he gave for saying Mass for everybody? 

3. Ought Titius to return the stipends? 

I. It is evident from the Council of Trent (s. XXII) that Mass 
may be said for all the living who are baptized and living in com- 
munion with the Church, as well as for the souls in purgatory. 
There is no difficulty on that point. The difficulty arises when 
there is question of saying Mass for persons excommunicated, or 
for heretics and schismatics, or for the unbaptized. May a priest 
say Mass for any of these latter, whether living or dead ? 

88 



FOR WHOM MAY SACRIFICE OF MASS BE OFFERED? 89 

Considered in itself, and apart from the legislation of the Church, 
there is no reason why Mass may not be said for any and all per- 
sons, since the sacrifice of the Cross was offered for all mankind. 
But inasmuch as the Mass is an act of public worship, its celebration 
comes under the laws and discipline of the Church. Hence in regard 
to saying Mass, the general rule is laid down that Mass may be 
said for any and all persons, except those for whom the Church 
by an express and incontrovertible law (for this is materia odiosa) 
forbids it to be said. 

2. The act by which a priest offers up Mass for any particular 
person may be a public act, or it may be semi-public, or it may be 
an altogether private act ; that is to say, the act by which the priest 
applies the special fruit of the Mass, or its ministerial fruit, as some 
theologians call it, to some private individual may be a public, a 
semi-public, or a private act. It is a public act when the priest an- 
nounces to the faithful that Mass will be said for such or such a 
person, or when he inserts the name of the person in the orations 
of the Mass. It is a semi-public act when the priest accepts the 
stipend and promises to say Mass for the person named, although he 
says nothing to the faithful about it. The act is a private act if the 
priest's intention in offering the Mass be known only to God. 

Now with these observations in mind, let us discuss the question 
of offering Mass for the living. 

1. The Church forbids the public offering of Mass for an excom- 
municatus vitandus (Ita omnes. Bened. XIV). 

2. The Church allows Mass to be said for a heretic or a schis- 
matic provided the Mass be said for the express purpose of obtain- 
ing for the heretic or the schismatic the grace of conversion to the 
true faith (dec. Holy Off., April 19, 1837). 

3. The Church allows Mass to be said for an unbaptized person, 



90 THE CASUIST, 

provided the saying of it gives no scandal to the faithful, and that 
nothing special is added in the Mass, and provided there be noth- 
ing bad or false or superstitious in the intention of the person of- 
fering the stipend, if such person be unbaptized (dec. July 21, 1865). 
Thus Mass may be said for an unbaptized sick person that he be 
restored to health, or for an unbaptized person condemned to death, 
that he recover his liberty, or escape the death penalty (Holy Off., 
March 11, 1848). 

Regarding Mass for the dead the Holy See was asked the follow- 
ing questions : 

1. Is it lawful to say Mass for those who die in open heresy, 
especially if it be known that you say Mass for them? 

2. Is it lawful to say Mass for such persons if no one knows it 
except the priest and the person offering the stipend? 

L Both of these questions the Holy See answered in the negative. 
In neither case is it allowed to say Mass. From which we conclude 
that the Church makes no distinction between the public and the 
semi-public saying of Mass, but forbids both alike. 

II. It is not lawful, under any circumstances, to say Mass for 
those who have died without baptism, "pro defunctis, qui in sua 
infidelitate ab hac vita decedunt" (dec. Sept. 12, 1845). 

III. It is not lawful to offer prayer in the name of the Church 
for an excommunicated person, if such person died while under the 
ban of excommunication, unless first absolved, no matter how con- 
trite the person may have been at the hour of death, and even though 
before God he may have been absolved from the excommunication 
(c. 28 de sent, excomm.). The absolution from the excommunica- 
tion must be first pronounced over their corpse, before Mass may 
be said for their soul. 

IV. Titius did wrong in accepting the stipends, and saying Mass 



FOR WHOM MAY SACRIFICE OF MASS BE OFFERED? 91 

for the intention of the giver, and above all he did wrong in men- 
tioning the names of the dead person in the orations of the 
Mass. 

V. Titius is not bound to return the stipends he received for the 
Masses, because he did not sin against commutative justice. He 
did all that he promised to do, when he took the stipends. He 
sinned against the laws of the Church, by saying the Masses, but 
he did not sin against the virtue of commutative justice. 



XXIII. THE WORDS OF CONSECRATION. 

Titius, a priest, somewhat scrupulous by nature, repeats the words 
of consecration very often in the Mass.* Once he repeated the words 
of consecration over the chaHce, because he had said "Hoc est enim 
caHx sanguinis mei" instead of "Hie est." Another time he omitted 
the words "mysterium fidei," and therefore repeated the whole form. 
Another time he repeated the form of consecration over the chalice 
because in his haste to get through the Mass he said "sanguis" for 
"sanguinis." And again another time he paused in the middle of 
the form of consecration for the chalice until he made an act of 
contrition, because he feared that he might be in mortal sin. Titius's 
confessor is at a loss as to what judgment he shall pass on Titius. 

Titius did wrong in all four instances, where he repeated the words 
of consecration, and he merits reproof. 

1. In the first instance Titius should not have repeated the words 
of consecration over the chalice in order to correct a grammatical 
mistake, "Hoc est" has identically the same meaning as the rubri- 
cal form "Hie est." It is less correct Latinity, but it is synony- 
mous with "Hie est." "Hoc est enim calix" is not a substantial 
change of the form of consecration, and does not invalidate the 
form. 

2. The omission of the words "mysterium fidei" does not invalidate 
the form. If all the words beginning with "novi et aeterni" and 
continuing to the end "peccatorum" were omitted, the form would 
have to be repeated, because, owing to the opinion of weighty theo- 
logians, the form would probably be invalid. But the same can 
not be said of the omission of one or two words, and some theo- 
logians think that the repetition of the words of consecration would 

*See the interesting chapter on this mania in Sanford's Pastoral Medicine. 

92 



THE WORDS OF CONSECRATION. 93 

be illicit, when only one or two words, like "mysterium fidei" have 
been omitted (cf. Lehmk., II. 129; Genicot, 11, no). 

3. Pronouncing "sanguis" for sanguinis" does not give any new 
sense to the words of consecration. It is evident that it is only 
a slip of the tongue, a slight accidental error of pronunciation, and 
that Titius intended just what the correct grammatical form says. 

4. Titius did wrong by repeating the whole form because he had 
interrupted it momentarily in order to make an act of contrition. 
Slight interruptions which scrupulous priests make in pronouncing 
the words of consecration do not constitute a moral interruption. 

We would add that in Titius's case it is very probable that the 
consecration of the chalice was already accomplished when he inter- 
rupted the form to make an act of contrition (cf. Genicot n. 176, 
II). 



XXIV. CONFESSION BY TELEPHONE? 

Case. — A certain priest, by name Paul, had brought into play all 
manner of artifice that might secure him an entrance hito the house 
of a Freemason, whose wife, Mary, lay grievously ill, but all in vain. 
He was on the point of despairing when he discovered that the house 
was equipped with a telephone. Through the assistance of a servant 
in the house, Paul was enabled to obtain communication with the 
sick woman, and, having heard her confession over the "phone," gave 
her conditional absolution. 

Now the question arises: Did Paul act prudently? Our answer 
is in the negative, and for the reasons we will now set forth. 

Solution. — Before all else, the penitent must be truly present to 
the confessor, for an absent person can never be absolved. This 
we know, in the first place, from the condemnation made by Pope 
Clement VIII of the following proposition: "Licet per litteras 
seu internuntium confessario absenti peccata sacramentaliter con- 
fiteri et ab eodem absente absolutionem obtinere." And Pope Paul 
V, approving of Clement's action, declared the condemnation to 
extend to both members of the proposition, even separately con- 
sidered. Secondly, we know this from the Council of Trent, where, 
speaking of the nature of the Sacrament of Penance, it is said : 
"Christum ita instituisse hoc sacramentum, ut poenitentes voluerit 
anto hoc tribunal tamquam reos sisti, et per sacerdotum sententiam 
a peccatis liberari." These words call for no more and no less than 
the presence of a criminal before a judge. 

The penitent, then, must be present to the confessor. But how? 
Morally or physically? Theologians are our guides in this matter, 

94 



CONFESSION BY TELEPHONE? 95 

and in this they are sure guides, seeing that they all agree in de- 
manding a moral presence. What, then, we may inquire, is moral 
presence ? These same theologians tell us, definitely or satisfactorily 
enough we do not say, that men are morally present to one another 
when they can speak with the ordinary voice (voce communi), 
though pitched in a higher key. Again we find some who extend 
this presence to twenty paces. The limit, however, is reached by 
those theologians who hold that the required moral presence is had 
if the confessor sees or by any one sense perceives the penitent, 
and this in the natural or human way. We now conclude that the 
presence required for valid absolution is had only when the con- 
fessor can perceive the penitent at least by one sense, and in the 
natural way, i. e., aided only by nature, e. g., the sun, air, etc. 

Indefinite as this notion of moral presence may be, we will now 
apply it to the case in hand. At the very outset, we can say that 
if this presence is had, it is only by means of the telephone. Through 
no other medium can Mary, lying ill in her home, be said to be 
present, either physically or morally, to Paul, who is now in the 
telephone station. Our question, then, concerns itself only with this 
circumstance of communication. Assuredly, this communication 
does not take away the distance, nor does it render those present to 
each other who are, de facto, at a distance, for at most it is but an 
efficacious medium of communication between absent persons. This 
is no new doctrine, for if we ask the general opinion of prudent men 
on this matter we will receive the same verdict — that the telephone 
does not create presence, but is only a means of communicating with 
an absent person. From the mere fact, then, of two persons being 
in communication it does not follow that they are present to each 
other, as can easily be seen in the case of communication had 
through a messenger, or again, by means of a letter. 



96 THE CASUIST. 

For fear this notion of moral presence may be, as yet, too in- 
definite or abstract, we will now take a concrete example of it — ^to be 
had, we think, in the case of hearing Mass. To fulfil our obliga- 
tion of hearing Mass we must at least be morally present, so that we 
would ' e reckoned among the number of those assisting at the offer- 
ing of the Holy Sacrifice. Could this be had through the telephone ? 
Is it likely that any one would admit that a person could hear Mass 
over the "phone"? Assuredly not. And why? Because the tele- 
phone does not supply moral presence. Still St. Alphonsus says : 
"Praesentia pro absolutione majorem propinquitatem requirit quam 
pro audienda missa." With this saying before us we can reasonably 
hold that the moral presence, required by the theologians, demands, 
if we may be permitted the expression, a local nearness, and we 
likewise contend that one would change the meaning of the words 
in affirming that Paul and Mary were truly present to each 
other. 

Our next endeavor will be to discover the mind of Jesus Christ 
anent this matter — the presence required for a valid absolution. Our 
Lord and Saviour Jesus Christ instituted seven Means of Grace, 
called sacraments. These seven sacraments, we might do well to 
note here, are separate entities instituted, each and every one of 
them, for a different purpose. A sacrament is a sign — an efficacious 
sign of grace. A sign is made up of two elements — the thing to be 
signified or symbolized, i. e., the idea of Christ, and the symbol or 
rite, which in turn is composed of two elements — one real or sen- 
sible, called matter, and the other verbal, called the form. Of the 
seven sacraments two were instituted in specie, i. e., Christ not ony 
gave the Church the idea to be symbolized, but also the matter and 
form which constitute the symbol. The other five Christ instituted 
in genere, i. e., He gave the Church the idea to be symbolized, and 



CONFESSION BY TELEPHONE F 97 

left her free to choose apt instruments to signify the idea. The Sac- 
rament of Penance was instituted in genere. 

The Council of Trent tells us that the Church can not change, in 
fact, can do nothing regarding the substance of the sacraments, i. e., 
the idea Christ had in instituting them. If, then, our notion of 
moral presence is included in the idea of Christ, which is the sub- 
stance of the sacrament, the Church can not change it one jot or 
tittle. If, on the other hand, it is contained in the symbol, the Church 
can, at her discretion and according to the needs of the time, change 
it. But, de facto, she has, up to this, in no way modified it. What 
we must do, then, is to discover the mind of Christ — His idea in 
this matter. 

We find nothing concerning it in the teaching of Christ, and, 
moreover, the Church, in her teaching, has not a word. We must 
go to the theologians and the practice of the Church for a solution. 
All theologians teach that Christ instituted penance for the remis- 
sion of all sins committed after baptism — that this was His idea. 
But what we are especially concerned about is the symbol or rite re- 
garding the determination of which the Church, we admit, was al- 
lowed a certain amount of latitude — an apt symbol, one that would 
clearly represent Christ's idea, made up of two elements, which the- 
ologians for convenience's sake have analogically called matter and 
form. As we have already stated, each of the sacraments has a 
symbol or rite in which these two elements may be distinguished. 
That same connection must be had between the matter and form of 
each symbol, all will admit, and that this connection may be different 
for different sacraments, is demanded by the fact that the sacraments, 
notwithstanding a certain more or less artificial uniformity, belong to 
disparate categories of things. What connection, then, does the 
Sacrament of Penance require between its matter and form? What 



98 THE CASUIST. 

presence is demanded to exist between the penitent supplying the 
matter and the confessor pronouncing the words of the form? In 
a word, according to the mind or idea of our Saviour, what presence 
must exist between Mary, confessing her sins, and Paul, giving her 
absolution? For an answer to this question we must betake our- 
selves to the theologians and the practice of the Church. 

The theologians have always taught that the penitent should pre- 
sent himself before the confessor as does the criminal before the 
judge. They have always demanded, for the validity of the ab- 
solution, that the penitent be present to the confessor so that the 
words of the form, pronounced in the ordinary way, should fall 
upon the penitent in like manner. This the Church also has always 
demanded, and as we see from her practice, has always obtained. 
This, then, is the idea of Christ which demands this presence for 
the validity of the absolution. But this presence is certainly not 
had through the telephone, as all theologians admit, and no necessity, 
no matter how great, can supply it, though some theologians, by a 
queer process of reasoning, come to this conclusion. 

The case of these latter theologians would not be altogether hope- 
less, but would have some probability in its favor, if the human 
voice was heard through the telephone, for, then, there would be a 
slight probability of the telephone creating moral presence. In this 
matter we must have recourse to science. What does she say ? Her 
verdict is that we do not hear the human voice, but only a physical 
reproduction, or rather, a physical effect of the voice. After a 
long struggle we may get her to admit that perhaps the human 
voice is heard, but more than this is required to produce a slight 
probability of moral presence, for a slight probability is a true 
probability, and, consequently, demands one good, solid motive. A 
slight probability is so called not because it has for its foundation 



CONFESSION BY TELEPHONE? 99 

a slight motive, but because it is of a lower grade of a true proba- 
bility. We hold, then, that a slight probability is not had in this 
case, and still a slight probability is necessary, even in a case of ex- 
treme necessity, for the licit administration of the sacraments. 

Because of these reasons we conclude that the presence, necessary 
for the validity of the absolution, is not obtained through the means 
of communication called the telephone, and consequently that Paul, 
in this case, acted imprudently. 



XXV. MAY MIXED MARRIAGE EVER BE 
ADVISED ? 

Mr. B., a wealthy Protestant merchant, married a Catholic woman, 
promising that the children should be reared as Catholics. After a 
happy married life the wife dies, leaving three children under age. 
B.'s mother was still living, but he did not care to place his children 
in her care, having promised their Catholic education. Under these 
circumstances he sought again the hand of a Catholic woman. The 
latter asked advice of her confessor, and he advised her to accept 
the offer, 

Quaeritur i. Is it never advisable to advise the entering of a 
mixed marriage? 2. Did the confessor act against the Church in 
casu? 3. What should the priest advise Mr. B. if he should ask 
for advice in the matter.^ 

Ad I. The dreadful havoc wrought by mixed marriages, for the 
individual and for the Church, is sufficiently known. The loss of 
souls, the inroads made by indifferentism, show as plain as daylight 
how well-founded the plaints of bishops and clergy from all parts 
of the Church are, and call to mind the touching words of Pius VIII, 
with which he accompanied the delegating of dispensation to the 
bishops of Prussia : Post haec Sanctitas Sua ad cruciUxi pedes pro- 
voluta protestatur, se ad tolerantiam praedictani ea dumtaxat de 
causa adduci seu verius pertrahi, ne graviora religioni catholicae 
incommoda ohveniant. For this reason it is the priests' sacred duty 
to refer in their sermons frequently to the evil consequences of 
mixed marriages, and to raise a warning protest already in the 
catechetical instructions at school. Yet, notwithstanding, now and 
again permission will be granted for a mixed marriage, the Church 
giving dispensation for weighty reasons, the necessary conditions 



MAY MIXED MARRIAGE EVER BE ADVISED? ror 

being observed. The practice of the Church proves this, and Ben- 
edict XIV forbids to consider as sinful such a marriage, contracted 
after vaUd dispensation. That, however, which is permissible under 
certain conditions, may under special circumstances be even good 
and commendable and therefore advisable. This would answer the 
first question. 

Ad 2. Against the Church would act the one who works against 
the spirit of the Church, who does not observe her laws, and offers 
occasion for violation of the same. A confessor who would advise a 
mixed marriage for any ordinary reason would certainly act against 
the Church. In our case, however, the salvation of three young 
children is at stake, which may be cared for without peril to the 
own soul. We are dealing with a man who is so in earnest about 
their Catholic education, that he for this reason alone seeks again 
a Catholic for wife. Such an one assuredly will never put any ob- 
stacles in the way of his wife's religious practices; this has been 
proven during his first marriage. On the contrary, there is a well- 
founded hope that he, too, may ultimately follow the lead of grace. 
Who would, therefore, censure the advice of this confessor, as 
against the Church, who recommends to a zealous Catholic such a 
spiritual work of mercy? A very similar case is recalled to the 
writer of these lines. A Protestant, upon the death of his Catholic 
wife, wanted to win a Catholic girl for his bride, so that he might 
be able to carry out his promise of bringing up his children as Cath- 
olics. The confessor advised the girl that she would be doing a 
good work by accepting the offer. But she declined to marry a 
Protestant; and no Catholic can blame her for it. What happened, 
however? The man eventually married a Protestant girl, who 
thought it queer that she and her Protestant husband should bring 
the children up as Catholics. The husband at first would listen to 



I02 THE CASUIST. 

no arguments, he desired to keep his promise. But then the Prot- 
estant minister came along, and so harangued the two that finally 
the children were sent to a Protestant church and school. 

The advice of our confessor was certainly not against the interests 
of the Church. 

Ad 3. The foregoing answers the third question. Should Mr. 
B. come to the Catholic priest and show himself the man we judge 
him to be from the facts in the case, the priest should help him to 
find such a Catholic wife, who is likely to undertake the task imposed 
by this marriage. 



XXVI. INQUIRING IN CONFESSION FOR THE NAME 
OF AN ACCOMPLICE. 

Titia, being reprimanded by her confessor for neglecting to make 
her Easter duty, gave the following reasons to justify herself: She 
said that she was at Confession last Easter, but that the confessor re- 
fused her absolution, because she would not reveal the name of a man 
ffiigh in the city government, with whom she had sinned. The con- 
fessor urged that he might be able to reclaim the official, who was a 
Catholic, if he knew his name ; at least, he might be able to prevent 
him from doing further evil. It is not wrong, the confessor further 
urged, to make known the hidden sin of another, when there is a 
sufficient reason for making it known. In the present instance, the 
good of your neighbor demands that his sin be made known, be- 
cause he may be reclaimed to the grace of God, or, at least, pre- 
vented from repeating this sin. Titia, however, refused to make 
known the name and was dismissed, without absolution, being re- 
quested to come back in another week, which she failed to do. 

Now we ask: 

1. Is it always, and in all cases, forbidden for a confessor to 
inquire the name of an accomplice, or are there any cases when this 
is allowed? 

2. What judgment is to be formed of the confessor in question? 

3. Did the confessor incur any censure ? 

I. In answer to the first question, we would say that Benedict 
XIV issued four Apostolic Constitutions condemning the practice 
of inquiring in confession the name of an accomplice. 

The first of these constitutions begins, "Suprema omnium," and 
was issued in 1745. The second begins, "Ubi primum," and was 

103 



I04 



THE CASUIST. 



issued in 1746. These two constitutions were first issued to the 
bishops of Portugal and Algarve. By a third constitution, beginning 
"Ad eradicandum," these two constitutions were extended to the 
whole Church. To these the same Pontiff added a fourth, "Apos- 
tolici ministerii," prescribing the mode of procedure against delin- 
quents. In these four constitutions, the Supreme Pontiff Benedict 
XIV condemns the practice of inquiring the name of an accomplice, 
and he punishes by excommunication, to be incurred ipso facto, and 
reserved to the Roman Pontiff, whosoever shall teach that the afore- 
said practice is licit, or whosoever shall defend it, or shall attack the 
decrees issued against it, or shall twist the same into another mean- 
ing; in like manner, also, suspension is decreed, "ferendae senten- 
tiae," against those who inquire the name of an accomplice, or his or 
her place of residence, or shall inquire such other information in con- 
fession that may easily discover the identity of the accomplice, and 
who shall deny absolution to penitents refusing to give this informa- 
tion. And these penalties are incurred, even though the delinquent 
may not have committed mortal sin. 

The theologians maintain, however, that these constitutions do not 
include each and every one inquiring the name of an accomplice. 
They except, therefore, from the penalties decreed in these constitu- 
tions all cases in which, according to true and sound teaching ("juxta 
veras et sanas doctrinas"), it is allowed and even necessary for 
the guidance of the penitent's conscience, to demand the name of 
the accomplice. 

Some theologians err in determining what cases are to be ex- 
cepted from the Benedictine censures. 

Those err who hold that it is allowed to inquire the degree of re- 
lationship in sins of incest. Because the degree of relationship does 
not add a new species to the sin of incest. 



INQUIRING FOR ACCOMPLICE'S NAME IN CONFESSION 105 

Again, those theologians err who maintain that it is Ucit to inquire 
whether a maid servant lives in the same house. Because it is suf- 
ficient to inquire whether the occasion is proximate or remote. In- 
deed, it can not be said that there is any certain grave obligation to 
tell a mortal sin in Confession, if such Confession will reveal the 
identity of the accomplice. If, therefore, the penitent is not bound 
to confess such a sin, by what right may a confessor question him 
about it? 

The case may occur where concealing the name of the accomplice 
may work much evil, which evil the penitent is bound to prevent, but 
which can not be prevented except by making known the accom- 
plice to the confessor. In that case the confessor must oblige the 
penitent to make known the accomplice, and if the penitent refuse, 
he or she is not worthy of absolution, and the penitent is bound in 
conscience to make the revelation, or otherwise to be judged un- 
worthy of absolution. But it is very desirable that the identity of 
the accomplice be revealed to the confessor, not in Confession, but 
outside of it. For if the revelation be made outside of Confession, 
then the case is no longer a case of the confessor inquiring the name 
of an accomplice, but of a penitent revealing the identity of his ac- 
complice, because he is bound to do so by a higher law. 
• 2. The conduct of the confessor in this case in requiring the peni- 
tent to discover the identity of the accomplice is reprehensible. It 
is in direct opposition to the constitutions of Benedict XIV, which 
expressly forbid inquiry as to the name of an accomplice, under 
pretext of correcting him. Nor did the good that the confessor 
hoped to do, after learning the name of the accomplice, justify him, 
because it did not fall within any of the cases which require the 
revelation of an accomplice. 

The confessor is likewise blameworthy for sending Titia away 



io6 THE CASUIST. 

without absolution. However, it is not evident from the case, that 
he denied her absolution, and told her to come back, in order to 
induce her to make known her accomplice. 

3. The confessor incurred excommunication, reserved to the Holy 
See, because he taught, and defended, and recommended a practice 
condemned as detestable by Benedict XIV. That he did so in pri- 
vate, and not publicly, does not exempt him from the censure. For 
in the constitution of Pius IX, "Apostolicae Sedis," all those incur 
the excommunication who teach or defend, either publicly or in pri- 
vate, propositions condemned by the Holy See. 

It might be urged in the confessor's defense that he did not teach 
that it was licit to deny absolution in this case. But such defense 
seems to lack any solid foundation. Some theologians, indeed, hold 
that no excommunication is incurred where the confessor does not 
teach that it is licit to deny absolution. But this can not be gath- 
ered from the Benedictine constitutions; because where they speak 
of the excommunication incurred, they do not make mention of 
"absolution"; they speak of absolution only in connection with the 
suspension incurred by the confessor. Wherefore the confessor is 
not suspended, unless he teach that the practice of inquiring the 
name of an accomplice is licit, and threaten the penitent with a denial 
of absolution, as an inducement to make the revelation. The con- 
fessor, therefore, in this case, has committed a mortal sin, has in- 
curred excommunication reserved to the Pope, and should be pun- 
ished with suspension, if he denied the penitent absolution because 
she would not reveal the name of her accomplice. 

In conclusion it is to be noted that Benedict XIV obliges all per- 
sons who shall in any manner have knowledge of such confessors, to 
denounce them. The penitent alone, in his or her own cause, is ex- 
cused from the obligation of denouncing, "ne seipsum prodat." The 



INQUIRING FOR ACCOMPLICE'S NAME IN CONFESSION loy 

priest, therefore, who knows of such confessors, outside of Confes- 
sion, is bound to denounce them. This denunciation is to be made to 
the Holy Office. Strictly speaking, if the offense was committed 
"ex prava voluntate," the confessor is to be denounced to the Holy 
Office. If the offense was committed "ex animi levitate," the con- 
fessor is to be denounced to the Ordinary. But the Holy Office is to 
judge whether the offense was committed "ex prava voluntate" or 
"ex animi levitate." Therefore, in either case, the denunciation is to 
be made to the Holy Office. 



XXVII. A CASE OF RESTITUTION. 

Some time ago a fire broke out in a store in which John is em- 
ployed as a clerk. To increase the amount of damages which his 
employer would receive from the insurance company, John, together 
with another clerk named Donald, testified that a large quantity of 
silk goods and laces had been destroyed by the fire, when, in fact, 
they had been removed by the proprietor and were intact. In the 
meantime the storekeeper has disposed of his business and removed 
elsewhere. Donald has a good position in a large New York house, 
but John makes scarcely enough to keep him. 

All this John makes known in his Easter confession. He knew at 
the time that he made the statement to the insurance agents about 
the silk goods and laces that it was a false statement, but Donald's 
testimony alone would not have sufficed to recover the supposed 
damages, and so he was induced to make a joint statement with 
Donald. He did not profit by it himself, nor does he know how 
much money the storekeeper got from the insurance people for the 
silk and laces, except that it was hundreds of dollars. When ques- 
tioned further by the confessor, John admits that there is no 
probability whatsoever, that either the storekeeper or Donald will 
ever make any restitution, neither of them being Catholics. Under 
these circumstances, the confessor holds John to restitution in the 
full amount. But John has nothing wherewith to make restitution, 
neither does he know the exact amount to be restored, nor the parties 
to whom restitution is to be made, since the old company has gone 
out of business and a new concern has bought up its interests. Under 
these circumstances the confessor volunteers himself to find out how 
much money was recovered from the insurance people for the silk 

1 08 



A CASE OF RESTITUTION. 



[09 



and laces, and to what individuals restitution must be made, and to 
inform John later of the results of his inquiries. In the meantime, 
however, the confessor grows anxious about the course he is taking 
in the matter, and asks whether he is acting rightly. Theoretically, 
there can be no doubt of John's obligation to make restitution, but 
only in case the storekeeper refuses to restore, in which case John is 
held jointly with Donald, because Donald's testimony, by itself, did 
not suffice to prove the supposed damage. Therefore, John is liable, 
together with Donald, for the whole amount, but only in the second 
instance, that is, in case the storekeeper does not make good, in 
which case John may recover from the storekeeper. But Donald re- 
fuses to pay his share ; therefore, John is liable for the full amount, 
but with the right to recover from Donald, Donald's half of the 
amount restored. In principle, therefore, the decision of the con- 
fessor is correct. In practice, however, we are obliged to take a 
different view of the confessor's conduct. 

In the first place, the confessor acted imprudently in undertaking 
to find out for John the exact amount of money paid by the insur- 
ance company to the storekeeper for the supposed destruction of the 
silk goods and laces, and to what persons this money should be re- 
stored. There is always danger of breaking the seal of confession in 
making such inquiries. Moreover, even supposing the penitent gives 
the necessary permission to make the inquiry, the undertaking is 
odious in itself, and may lead to embarrassing complications. There 
is no need, in the present instance, of such an investigation, because 
John has no means wherewith to restore. There is question of mak- 
ing restitution to an insurance company. These companies are op- 
erated and secured by the premiums paid by the persons insured. The 
rate of the premiums depends on the risk the company takes in insur- 
ing, the risk being computed on the average frequency of fires, as 



iio THE CASUIST. 

shown by the records of insurance companies, no account being taken 
whether the fires are accidental or of incendiary origin. The com- 
pany endeavors, by means of restrictive clauses and thorough inves- 
tigation into the origin of each fire, to protect itself against fraud. 
However, it can not guard against every deception practised by the 
insured. Therefore, in fixing the rate for insurance the company 
considers only the possible damages it may have to pay. Hence it 
follows that the carriers of fire insurance policies are themselves, to 
some extent, the sufferers when unjust fire damages are allowed, 
because they pay a higher premium rate in consequence of fires of 
incendiary origin. H no fraud were practised on insurance com- 
panies by holders of policies in the same, the rate for insurance in 
such companies would be much lower than it is. It is but just that 
the policy-holders should be indemnified for unjust damages they 
are thus indirectly made to suffer. But the number of policy-holders 
is so great that the amount of restitution to be made to each policy- 
holder for damage done him by any particular fire is inconsiderable. 
Moreover, their identity is unknown. Therefore, the poor may be 
substituted for them and restitution made to the poor. In this view, 
and it is well founded (cf. Lehmkuhl, I. ii, 34), John's case may 
be easily disposed of. John is actuated by a sincere desire of mak- 
ing restitution, but is prevented by his poverty. The confessor 
may tell him that he may give alms to the poor by way of restitution, 
and as he is poor himself, he is included in the number of those who 
may benefit by the alms. In this way John's conscience is set at rest. 
But the storekeeper and Donald are still bound to restore. 



XXVIII. THE PAULINE PRIVILEGE. 

Case submitted : 

A certain unbaptized lady was married to an unbaptized man. 
They separated before the civil court. The lady got married again, 
and wished to join the Catholic Church with her husband. Not 
having been informed about her former marriage to the infidel, and 
finding them sincere and well disposed, I baptized them and married 
them. 

I did it because, i, they live in the mountains, among the Mor- 
mons, and everything was prepared when I arrived there ; 2, because 
I thought that she had the privilege by the "Casus Apostoli," 
although "interpellatio non facta fuit." Our bishop says that he 
doubts whether in his faculties he has the power to dispense in the 
"interpellatio partis infidelis." Do you know whether the Holy 
Father gives this power to the bishops in this country? Some say 
that they have the power. 

It would be too bad, not only for that couple, but for numerous 
relatives, who desire to enter the true Church. In case the "inter- 
pellatio" is necessary "quoad validitatem," must I procure a dis- 
pensation "in radice"? 

Solution : 

The case here submitted gives rise to the following questions : 

1. Is the "interpellatio partis infidelis" required "ad validitatem" 
or only "ad licitatem novi matrimonii"? 

2. Have the bishops of the United States faculties to dispense "a 
facienda interpellatione" ? 

3. What ought the priest to have done as soon as he learned of 
the first marriage? 



112 THE CASUIST. 

4. What is to be done now ? 

I. Is the interpellation required for the validity of the new mar- 
riage, or only for its licitness? 

Answer. — The theologians are not agreed as to whether the in- 
terpellation of the unbaptized party is required for the validity of 
the new marriage, or only to make it licit. The greater number favor 
the opinion that the interpellation is of divine command — juris divini 
— and that its omission, without Papal dispensation, makes the new 
marriage invalid. Card. D'Annibale (1. III. n. 476) says to the 
question "utrum interpellatio necessaria sit ex jure divino? Sen- 
tentia longe communior affirmat." 

The theologians who hold that the interpellation is required for 
the licitness only of the new marriage, contend that the validity of 
the new marriage, contracted without the interpellation and without 
a Papal dispensation, will depend, "ex jure divino," on the willing- 
ness or unwillingness of the unbaptized party to be converted or to 
cohabit in peace, etc. The new marriage of the baptized party will 
be valid or invalid, according as the subsequent investigation shall 
prove that the unbaptized party to the first marriage was willing 
or unwilling to be baptized or to dwell with the Catholic party with- 
out sin, etc. 

These theologians hold that the interpellation is a "medium 
dignoscendi utrum de facto verificetur casus apostoli, quemadmodum 
inquisitio de morte conjugis requiritur ad licitam novi matrimonii 
celebrationem, sed ejus omissio non efficit novas nuptias esse nullas 
et irritas". 

Thus Ballerini-Palmieri (VI. n. 619), "Ego vero nescio, cur et in 
casu nostro, non sit pari modo arguendum (as in the case of estab- 
lishing the fact of the husband's or wife's death, before contracting 
a new alliance), nempe, certe eum peccare qui, non interpellata 



THE PA ULINE PRIVILEGE. 1 1 3 

parte infideli, novum contrahit matrimonium ; sed valide contrahere, 
si infidelis seipsa cohabitare aut converti nolebat, invalide, si consen- 
tiebat conversioni aut cohabitationi." Indeed, there are some theo- 
logians who argue that the omission of the interpellation would not 
even render the new marriage illicit, if the unwillingness of the un- 
baptized party to be converted had been proven for certain in some 
other way. But whatever may be said of the probability of these 
opinions which deny the need of interpellating "quoad validitatem 
novi matrimonii," it must be admitted that the greater number of 
theologians hold that the interpellations are "juris divini," and their 
omission, without Papal dispensation, renders the new marriage in- 
valid. Moreover, innumerable decrees and answers of the Holy See 
prove beyond doubt that it is never licit to omit the interpellation 
without the permission of competent authority. 

In the year 1884, the Bishop of Portland consulted the S. Congr. 
de Prop. Fide on the following question: "Utrum, ubi agitur de 
dissolutione matrimonii in infidelitate contracti . . . et ubi pars 
infidelis divortio legali a viro soluta, ad alias nuptias convolavit, 
interpellatio omnino necessaria esset, etiam cum sequentibus maximis 
incommodis, scilicet, i, mulier infidelis interpellationem ut sibi in- 
juridam reputat; 2, vir ejus novus indignatus audit interpellationem 
et si viva voce interpellatio fit, nuntius aliquando non sine periculo 
munere suo fungetur ; 3, ubi vir aut mulier divortio solutus ad aliud, 
ut aiunt, matrimonium jam transivit, non posset ad priorem spon- 
sum redire : 'obstat enim lex civilis.' " 

To this question the S. Congr. de Prop. Fide replied as follows : 
"Ad mentem. Mens est, quod neque divortium, neque secundum 
matrimonium civile sunt sufficientia ad eximendum ab obligatione 
interpellationis. Quatenus vero saltem summarie et extrajudicialiter 
constet interpellationem vel impossibilem vel inutilem fore, utetur 



114 ^^^ CASUIST. 

Episcopus facultate dispensandi, si ea pollet ; sin minus, supplicandum 
sanctissimo pro facultate pro decern casibus. SSmus, approbavit et 
facultatem concessit" (G. P. F. 1360). Feije (Disp. n. 493) says: 
If the baptized party contract a new marriage, without interpellating, 
and without procuring a dispensation from the interpellations, then 
the baptized party sins grievously. The validity, however, of the 
marriage, in the opinion of many theologians, will depend on the 
subsequent consent or refusal of the unbaptized party to be con- 
verted and to cohabit peaceably, etc. This opinion, however, con- 
tinues Feije, does not agree with the decisions of the S. Congr. de 
Prop. Fide (March 5, 1816), which Congregation has declared, in 
some particular cases, a marriage invalid which was contracted with- 
out first interpellating or procuring a Papal dispensation. 

Little, if anything, can be concluded from the rulings of the S. 
Congregations concerning the necessity of interpellating on pain of 
invalidating the new marriage. The decisions of the Sacred Con- 
gregations refer to particular cases, and they purposely refrain from 
using terms that might be construed as settling a general point in 
dispute among the theologians. Thus the Propaganda was asked, 
March 5, 1816, "utrum interpellatio sit de jure divino, atque adeo 
necessaria, ut ea neglecta, nullus plane habeatur locus dissolvendi 
matrimonii" and returned this answer, "se noluisse ex professo huic 
petito respondere," etc. " 

There is no foundation for the categorical statement that "out- 
side of the case of a Papal dispensation, the interpellation is always 
required, jure divino, and that on pain of invalidity of a new mar- 
riage" (Smith, Marriage Process, n. 305). 

Since theoretically, therefore, theologians are not agreed as to the 
nature of the need of interpellating, practically the interpellations are 
always to be made, or a Papal dispensation from them must be pro- 



THE PAULINE PRIVILEGE. 



"5 



cured, because any other course would leave the subsequent mar- 
riage a doubtful contract, and jeopardize the validity of the sacra- 
ment. 

Second Question. — Have the bishops of the United States facul- 
ties to dispense from the interpellations? They have no general 
faculties. Some individual bishops may have faculties to dispense 
from the interpellations for a certain number of cases, but there 
are no general faculties given to all our bishops as a body. Smith 
(Mar. Proc. n. 302) says: "Bishops in the United States have no 
such Papal delegation, at least generally speaking, and consequently 
recourse is to be had to Rome in each case with us, as is also plainly 
intimated by the S. Congr. de Prop. Fide, Instr. Causae Mat. sect. 
45, Append. III. PI. C. Bait." 

The words of the "Instruction" are as follows : 

"Si matrimonium acciderit cum parte catholica post baptismi 
susceptionem, erit inquirendum, utrum praecesserit conjugis adhuc 
infidelis canonica interpellatio, aut saltem a legitima potestate fuerit 
super eadem interpellatione dispensatum. Quatenus constiterit de 
facta interpellatione aut de illius dispensatione, primum matrimonium 
nequit amplius constituere vinculum secundum connubium irritans; 
quatenus vero neque interpellatio, neque ejusdem dispensatio prae- 
cesserit, primum matrimonium obstabit quidem secundo, sed Ordi- 
narius judicium suspendere debebit et casum, cum omnibus suis cir- 
cumstantiis ad S. Sedem remittere, quae ipsi Ordinario quid 
faciendum sit, indicabit." Putzer (Comment, in Facult Apost. n. 
130) says: "An hac facultate etiam nostri Episcopi (U. S. A.) 
gaudeant, publice non constat." 

Among the faculties granted by the Holy See to the bishops of 
the United States is this one: "Dispensandi cum gentilibus et in- 
fidelibus plures uxores habentibus, ut post conversionem et bap- 



ii6 THE CASUIST. 

tismum, quam ex illis maluerint, si etiam ipsa fidelis fiat retinere pos- 
sint, nisi prima voluerit converti." 

Our bishops, therefore, may dispense from the second of the two 
interpellations, namely, whether the unbaptized party will cohabit in 
peace, etc., but not from the first interpellation, namely, whether the 
unbaptized party is willing to receive baptism. 

Third Question. — What ought the priest to have done as soon 
as he learned of the first marriage ? In the first place he might have 
prudently suspected the possibility, if not the probability, of some 
such previous marriage and divorce under the circumstances, since 
such things are so common in the United States, and elicited the in- 
formation in time to make the interpellations or to procure a dis- 
pensation from the proper authorities. Of course, this was im- 
possible at the moment when the priest did, as a matter of fact, 
learn of the previous marriage and divorce. The parties live 
far away in the mountains. They are living together in good faith 
as husband and wife. They are to be baptized and then married. 
Everything is ready. The only practicable course open to the priest 
would seem to be to leave them in good faith and marry them and 
then procure a dispensation from the interpellations and have them 
renew their consent. 

There is ample reason, under the circumstances, to petition the 
Holy See for a dispensation. The second husband is a Catholic now, 
and the parties are in good faith, and there is no hope of the wife 
ever returning to the first husband, from whom she is legally 
divorced and who is unbaptized. 

The effect of this Papal dispensation from the interpellations is 
"ut matrimonium partis neo-conversae cum altero fideli sit validum 
et omnimoda firmitate gaudeat, etiamsi postea constaret de bona dis- 
positione compartis infidelis, momento quo data fuit dispensatio, 



THE PA ULINE PRIVILEGE. 1 1 7 

imo, etiamsi probaretur hoc ipso momento, partem quae credebatur 
infidelis, jam fuisse baptizatum" (De Becker, de Mat. p. 456). 

Fourth Question. — What is to be done now? Leave the parties in 
good faith and procure a dispensation from the interpellations and 
then make them renew their consent. In this case, according to a 
recent reply of the Congr. of the Holy Office, there is no "sanatio in 
radice," "in hoc casu non dari locum dispensationi in radice," etc. 
(Jan. 17, 1900). Consequently, after procuring the dispensation, 
the parties must be married over again, that is, renew their consent 
in the presence of the parish priest and two witnesses. 



XXIX. MAY A PERSON BE DISPENSED FROM 

HEARING MASS ON SUNDAYS, IF GOING 

TO MASS BECOMES A PROXIMATE 

OCCASION OF SIN? 

The case is this: One Robert Smith, a farmer and the father of 
several children, is greatly addicted to strong drink, and in con- 
sequence his farm is heavily encumbered. In other regards he is a 
good father, and during the week keeps quite sober and is industrious 
and economical. But when he comes to town on Sundays to hear 
Mass he can not resist the temptation to visit the saloons, where he 
spends the entire day in drinking, and returns home Sunday evenings 
regularly in a sad state of intoxication. In this way he becomes, 
every Sunday, a source of scandal for the whole congregation, and 
sinks his family into ever deeper misery. 

He means well, however, and is thoroughly conscious of his mis- 
erable condition, and, in utter dejection, he goes to Confession and 
says: "Father, I don't know what I shall do to save myself from 
this fatal weakness. I have tried repeatedly all the means you recom- 
mended. I have prayed. I have firmly resolved to return home im- 
mediately after Mass. I have even requested a friend of mine to 
accompany me, etc., but all to no purpose. Every time that I come 
to town I am drawn irresistibly to the saloon, and in spite of all my 
good resolutions I seem to be utterly powerless in the presence of 
the temptation. Now, I sometimes think to myself, it would be 
better not to come to Mass at all on Sundays than to come to Mass 
and get drunk. I think it would be better for me if I remained at 
home altogether on Sundays for a while, until I get this passion for 

ii8 



MAY A PERSON BE DISPENSED FROM HEARING MASS? 119 

drink under control. But I should like to have your advice in the 
matter." 

"Very good," answers the confessor. "If you think that staying 
at home on Sundays is the only means left you for overcoming the 
drink habit, I will dispense you from hearing Mass on Sundays. Re- 
main at home for some Sundays, and endeavor to get control of your- 
self in this matter. Then come to Mass again. In the meantime, 
however, say your Mass-prayers at home." 

Question. — Did the confessor act rightly? 

Answer. — We think that he did, and for the following reasons : 

1. Smith is here in the presence of two conflicting duties. On the 
one hand, he is bound to avoid the proximate occasion of sin, which, 
in the present instance, is his attendance at Mass on Sunday. On the 
other, he is bound to fulfil the precept of the Church, namely, to hear 
Mass on Sundays and holydays of obligation. But since the obliga- 
tion of avoiding the proximate occasion of sin is imposed by a law 
of nature, absolute and negative, it takes precedence over the obliga- 
tion of hearing Mass on Sunday, which is imposed by a law of the 
Church, hypothetical and affirmative. For this reason alone. Smith 
may be dispensed from the obligation of hearing Mass on Sunday, 
since attendance at Mass becomes for him, per accidens, a proximate 
occasion of sin. 

2. A precept of the Church, at least in so far as it is of an affirma- 
tive character, in general does not oblige "sub gravi incommodo vel 
damno aut proximo gravis damni periculo." But in regard, par- 
ticularly, to hearing Mass, St. Alphonsus says : "Excusat ab audienda 
missa quaevis causa mediocriter gravis^ sc. quae involvit notabile 
aliquod incommodum aut damnum in bonis animae vel corporis pro- 
prii aut alieni" (Lib. III. n. 324). 

These passages excuse Smith from hearing Mass, for, as things 



I20 THE CASUIST. 

stand at present, attendance at Mass is for him a "proximum gravis 
damni periculum" which involves a "notahile damnum in bonis ani- 
mae" for him. Under the circumstances, therefore, the confessor 
acted rightly in dispensing Smith from attendance at Mass — ^that is, 
in declaring authoritatively that for the present there is no obligation 
for Smith to hear Mass on Sundays or holydays. 

The circumstance that the "occasio proxima" and the "proxi- 
mum gravis damni periculum" are of Smith's own creation does 
not oblige him to hear Mass, for St. Alphonsus says expressly in 
regard to this : "Excusat etiam impotentia ilia, cui antea causam cum 
peccato dedisti, dummodo de hoc vere doleas" (Lib. I. n. 176). 

It is true, indeed, that Smith, owing to his excessive indulgence 
in drink, has created for himself an "impotentia moralis audiendi 
missam." But as he is heartily sorry for this, it is not right, in this 
particular instance, to hold him to the consequences of his fault, 
unless we wish to make the evil even greater than it is. 

Here another question may be asked : Is it lawful for the confessor 
to allow Smith, who is an "occasionarius" and "recidivus," to re- 
main so long a time away from Mass? Undoubtedly it is, provided 
only that the confessor knows for a certainty that Smith has dili- 
gently employed all the other means recommended by him for avoid- 
ing the proximate occasion, and uprooting the bad habit, especially 
the frequent reception of the sacraments, and, nevertheless, has 
always fallen back into the old sin. In this case the confessor 
must use extreme measures, since it is an axiom in morals that the 
"occasio moraliter necessaria" (and such is the case under con- 
sideration) must be given up "cum quocunque damno vel incom- 
modo, si poenitens etiam adhibitis mediis, eodem modo relabitur." 
The confessor, therefore, has the right, since all ordinary means have 
failed, to have recourse to extreme remedies ; that is, to dispense the 



MAY A PERSON BE DISPENSED FROM HEARING MASSf 121 

penitent from attendance at Mass on Sundays for such a period of 
time as shall seem to him necessary for the removal of the proximate 
occasion. Smith may be protected against the danger of becoming 
careless about hearing Mass on Sunday by being obliged to per- 
form some special acts of devotion at home on such days. Although 
a person is not obliged to perform any special devotions or acts of 
piety, or to hear Mass on weekdays, if he is prevented from hearing 
Mass on Sunday, still, as Lehmkuhl says (I. n. 567), "qui per totum 
annum impediretur quominus diebus Dominicis et festivis sacro in- 
ter esset, aliquoties id sup pier e deberet diebus ferialibus (e. g. ter. 
quaterve)." 

In this case the confessor should not neglect to hold Smith to 
some special acts of devotion on Sundays, v. g., to the recitation of 
the Rosary, because it is Smith's own fault that he is not in a posi- 
tion to hear Mass on that day. 

Another question suggests itself in connection with this case, 
namely : Will not this dispensation, which is granted to Smith to 
absent himself from Mass on Sundays, cause grave scandal in the 
parish, especially when it becomes known that Smith has been dis- 
pensed from hearing Mass for such a long period of time? To this 
question, Lehmkuhl replies as follows : "Si propter meam actionem, 
proximo difficile erit a peccato abstinere, proportionate gravis causa 
ex mea parte requiritur ut agere possim; igitur gravior, quo major 
est alterius difficultas majusque peccatum" (I. n. 633). It is very 
likely that Smith's absence from Mass on Sundays will cause scandal 
among the members of the parish. Nevertheless, the reason for per- 
mitting the scandal is so grave that there is no occasion for any 
qualms of conscience. The penitent may also forestall the scandal 
in large measure by stating openly his reason for staying away from 
Mass on Sundays, saying that he is acting on the advice of his con- 



122 THE CASUIST. 

fessor, and as a last means of conquering his appetite for strong 
drink. Nor does such a statement contain any personal defamation. 
On the contrary, the good will and sincere desire to reform revealed 
by such an admission will contribute largely to repair the scandal 
given in the past. 



XXX. CONCERNING THE PERUSAL OF PRIVATE 
REVELATIONS. 

I. There are many persons, especially women endeavoring to 
lead a holy life, who occupy themselves a great deal with so-called 
revelations made to pious persons, even to the exclusion of all other 
spiritual reading matter. Sometimes such persons study the revela- 
tions made to some particular saint, drawing all their spiritual nour- 
ishment from them; then having their appetite whetted by the 
perusal of one book of this kind, they eagerly devour anything of 
the same nature that they are able to lay hold of. They believe in 
these revelations as firmly as they believe in the Gospels and are 
strongly disposed to brand as heretics, or at least as suspects, all 
who do not put the same faith in them as they do themselves. This 
disposition alone is sufficient to prove that the perusal of these 
private revelations is not a healthy, spiritual exercise for all indis- 
criminately, and it becomes necessary from time to time to instruct 
the faithful on this head. 

2. That there may be, that there have been, and that there are 
at present revelations made to private individuals is beyond ques- 
tion. We are speaking, of course, of revelations made to holy and 
devout persons, which have been investigated by the Church and 
declared to contain nothing against faith or good morals. No posi- 
tive ecclesiastical approbation is ever given to such revelations. 

3. When the Church revises and approves revelations and visions 
in this sense, all she does is to certify that these visions and revela- 
tions contain nothing against the "rule of faith," the "regula fidei" ; 
so that the faithful may believe them without injury to their faith 
(pie creditur) and use them as a guide to conduct without fear of 

123 



124 ^^£ CASUIST. 

believing or doing anything unauthorized by the Church. Where 
the Church has thus given her approval to any particular private 
revelation, it is no longer permitted to ridicule or to despise it. "Fas 
non est," says Card. Franzelin, "tales revelationes contemnere" (de 
div. trad. 22). To do so were to fail in the respect due to the 
Church. But not to believe the revelation is no sin against the 
obedience we owe the Church. For the Church, by her approval 
or quasi-approval of these revelations, has no intention of obliging 
the faithful to believe them. Whoever believes in them, does so 
"fide humana," and not "fide divina," at least not "fide divina 
Catholica." 

"In spiritual things," says Catherine Emmerich, "I never be- 
lieved anything except what was revealed by God and proposed for 
my belief by the Catholic Church. What I saw in visions I never 
believed in this way." 

4. The body of revealed truth, necessary to salvation and bearing 
the seal of infallibility, was completed and closed, once for all, by 
the teachings of Christ and the apostles. When the Church defines 
a new dogma, she simply declares authoritatively that it is contained 
in the teachings of Our Lord and the apostles. Just as private reve- 
lations do not bear the seal of infallibility, so neither do they bear the 
mark of inerrancy. There is no divine inspiration guaranteeing the 
correct recording of private revelations, as is the case with the Holy 
Scriptures, even though the fact of the revelations has been es- 
tablished. 

Private revelations are exposed to a threefold danger. The under- 
standing may err in receiving the revelation. The memory may fail 
in recording orally or in writing the contents of the revelation. The 
tongue may err in its effort to clothe the revelation in human words. 

Moreover, as Bened. XIV remarks, notions and ideas acquired pre- 



CONCERNING PERUSAL OF PRIVATE REVELATIONS. 125 

vious to the revelation may be confounded by the person receiving 
the revelation with the things learned in the revelation, and thus 
the saints have sometimes considered things to have been revealed 
to them which were in nowise revealed. Hence the contradic- 
tions in different revelations. 

5. The supernatural communication, therefore, as well in its re- 
ception as in its transmission, may be unwittingly falsified. The 
Holy Scriptures alone are preserved from such falsifications. And 
thus it happens that the private revelations of different holy persons 
contradict one another openly, and in many things. 

6. All that the Church says, therefore, when she lends her ap- 
proval to the private revelations of the saints or other holy persons, 
is that these revelations may be believed "fide humana," and that 
they are adapted and may be used for the edification of the faithful. 

The declaration of Bened. XIV does not contradict this : "When 
the Church has examined and approved these visions, no one may 
any longer doubt their supernatural and divine origin." The Pope 
speaks only of their origin, and not at all of their contents, nor of 
their correct reproduction. And even a refusal to believe in their 
divine origin would not be a sin against Catholic faith. 

7. After these theoretical remarks let us add a few words of a 
practical nature. The reading of these visions and private revela- 
tions is in nowise adapted to the needs of ordinary people, even 
though they may have correct notions about the credibility of private 
revelations. Many of these revelations are beyond the needs and the 
intelligence even of persons already far advanced in the spiritual life, 
and are often clothed in language quite unintelligible. And herein 
precisely lies a new source of anxiety, because a new danger, namely, 
the danger of understanding the revelation in a wrong sense, which 
may easily lead to positive error and sin against the "rule of faith." 



126 THE CASUIST. 

8. Besides the danger just mentioned there is another, namely, 
the danger of a one-sided and an imperfect direction in holiness, and 
of laying great stress on trifles and things of secondary importance. 
But what is worst of all is that the reading of these revelations gives 
rise to secret spiritual pride and makes silly pious people, for it is 
such persons that are most addicted to this kind of reading, that 
imagine themselves farther advanced in the ways of perfection than 
others and think that they know more about matters of faith and 
morals than most other people, even more than the priests them- 
selves. 

9. It may cause some surprise if we add a warning for members 
of religious orders, especially of women. As a general rule, it is 
not advisable to make use of histories of private revelations, made 
to pious and holy persons, for general community reading. And 
those in authority in religious communities should be very slow to 
allow individual members of the community to make use of the same 
for their private reading. Women in religious orders who are 
endeavoring to lead holy lives are more apt to evince a weakness for 
what is extraordinary than for what is ordinary in their quest of 
perfection, than their sisters in the world. They prefer the revela- 
tions of St. Brigitta or of St. Gertrude to an ordinary introduction 
to the spiritual life. And it is precisely those who are by no means 
firmly grounded in the spiritual life who hanker after what is higher 
before they understand or put into practice the most ordinary and 
necessary requirements of spiritual growth. In the case of religious 
the evil effects of this kind of reading are more pronounced and 
more disastrous than in the case of lay people, and they sometimes 
create disturbance and division in an entire convent. 

10. Some may think these remarks and warnings too severe and 
even exaggerated. And such indeed were the case did we apply 



CONCERNING PERUSAL OF PRIVATE REVELATIONS. 



127 



them, a priori, to all private revelations. They hold good only 
for those who read indiscriminately, and without selecting, especially 
revelations made to holy persons in times long gone by, and which 
are profoundly mystic, not to say apocalyptic in their presentation. 

Simple books, and books that may be readily understood, like 
the visions of Catherine Emmerich concerning the life and suffer- 
ings of Our Lord and His Blessed Mother, are much to be pre- 
ferred to others, and we would even recommend them. 



XXXI. DISPENSATION FROM IMPEDIMENTUM IM- 
PEDIENS ARISING FROM BETROTHAL. 

John contracts valid espousals with Mary, but afterward falls in 
love with Martha, and, without any just cause, deserts Mary. When 
he goes to the parish priest to get married to Martha, Mary puts in 
her claim, and the priest sustains her right. Then John and 
Martha go before a magistrate and contract civil marriage, which, 
where the Tridentine decree is published, is no marriage at all. 

After some time, when they have two children, they wish to be- 
come reconciled with the Church, and also to legitimatize the chil- 
dren ; so they ask the parish priest to try to persuade Mary to give up 
her right, but the attempt is vain. The worried pastor is telling his 
troubles to a neighbor, and is surprised to hear that the matter can 
be fixed by a dispensation from the Sovereign Pontiff. He doubts 
whether the Roman Pontiff can give a dispensation hurtful to the 
interests of a third party, so he submits the following questions to a 
theologian : 

1. Whether and for what cause can the Roman Pontiff dispense 
from an impedimentum impediens arising from valid betrothal? 

2. Whether in the present case there is sufficient ground for a dis- 
pensation ? 

3. Whether Mary should have given up her right? 

4. Whether, supposing a dispensation granted, John has still any 
obligations to Mary? 

I. Since it is a question of the Roman Pontiff in his public 
capacity, we can infer from fact to right. Now the Roman Pontiff 
does dispense in such cases. Therefore, he has the right. 

128 



IMPEDIMENT ARISING FROM BETROTHAL. 129 

Moreover, "cut licet quod est plus, licet utique quod est minus." 
Now the Pope can dispense in the case of a marriage ratum non con- 
summatum. Therefore, a fortiori, he can dispense from these lesser 
impediments. 

It is true that m betrothal there is a right acquired by the other 
party, and the difficulty is: How can the judge, as defender of the 
law, act prejudicially to the rights of this other party? It must be 
remembered, however, that the Pope is Chief Legislator as well as 
Chief Judge. As Chief Judge, he must urge the observance of the 
law. But as Chief Legislator, he can undoubtedly dispense from the 
law he has made ; for the law-maker can dispense from the law. 

However, he can not do so arbitrarily and without cause. The 
gloss in can. I. dist. 22 in Decret. v. injustitiam says, "nee Papam 
debere uni detrahere ut det alteri nisi subsit causa." It therefore re- 
quires a grave and just cause for the Pope, although he is Chief 
Legislator, to use this power. The question now is whether such 
cause exists. 

II. There is no doubt that John did Mary a serious wrong when 
he deserted her, and committed a grave sin. But should he be 
compelled to leave Martha and her two children and marry Mary? 
No one can sincerely propose such a solution. Suppose that after 
he contracts Christian marriage with Mary, the civil power were to 
intervene and order him to restore Martha to conjugal rights. It is 
evident that there are quite sufficient causes for granting the dis- 
pensation. And as a matter of fact, in our own times the Pope has 
granted dispensations of this sort. 

III. Mary ought to give up her claim, not by the strict rigor of 
justice, but from charity. She could properly urge her claim until 
the man went through the civil contract, but afterward, considering 
his obligation before the civil law, and the birth of his children, 



I30 THE CASUIST. 

and desire of the parents to be reconciled with the Church, she ought 
to make things smooth by giving up her right. She owes it to herself 
as well as to them, for even if she married the man before the 
Church, the other woman would have a claim on him in the eyes of 
the civil law. 

IV. Even if a dispensation is granted, the rejected girl still has 
certain claims : i. He must restore any presents he has of her, though 
she is not bound to send back his gifts. 2. He must make com- 
pensation for any evils which she may have sustained by his breaking 
the engagement. 

It is a disputed question whether the engagement holds if Martha 
dies before the others. Some hold that the betrothal remains in 
suspense, and binds once more if the wife dies ; others that it becomes 
altogether extinct. Arguments are drawn by both sides from the 
texts of the law, which does not seem to be clear on the question. 
But since there is no word of such an obligation in the rescript of 
the dispensations, it seems to be the mind of the legislator that by the 
dispensation the original obligation becomes extinct. In practice, if 
such a case should arise, it would be necessary to bring it to an 
ecclesiastical judge. 



XXXII. DOUBTFUL CONSECRATION AND ITS CON- 
SEQUENCES. 

Cajus, a young priest, is to say the solemn Mass on Holy Thurs- 
day. Because a large number of people wish to receive Holy Com- 
munion at that Mass, Cajus takes a great many small particles and 
folds them in an extra corporal and places them on the altar, be- 
side the chalice, and on the regular Mass corporal. At the offer- 
tory and at the consecration, he unfolds the corporal so that he may 
see the particles, and he directs his intention to them. Shortly after 
the consecration, he sees a small particle lying on the floor beside 
him. In his confusion he picks it up quickly and lays it on the 
consecrated particles beside the chalice. After a few moments, 
however, he begins to doubt whether the particle was consecrated 
or not. It may have fallen to the floor just before the consecration. 
Still, he thinks he would have noticed it sooner had it fallen before 
the consecration. He does not know what to do. 

If the particle was not consecrated, he can not distribute it with 
the others without committing an act of material idolatry, and de- 
priving some one of the communicants of Holy Communion. He 
can not distinguish this particle, however, from the others, and 
the people are waiting to receive Holy Communion. Cajus asks 
the Mass-server if he knows when the particle fell to the ground; 
the Mass-server does not know. In this dilemma the young priest 
distributes all the particles in Holy Communion. 

Now we ask: i. Was it right to use tzvo corporals at the Mass? 
2. What is to be said about Cajus's mode of procedure with regard 
to the doubtful particle? 

I. In the Rubrics of the Mass, mention is made of only one cor- 
poral to be used at Mass, namely the one that is spread under the 

»3i 



132 THE CASUIST. 

chalice and on which the large host is laid. If small particles are 
to be consecrated during the Mass, they are to be laid on this cor- 
poral, "ante calicem," or they are to be put into a second con- 
secrated chalice, or other holy vessel, which is placed on the cor- 
poral of the Mass behind the chalice of the Mass, "retro post 
calicem" (Ritus eel. Missam. ii. 3). A second corporal is unknown 
to the Rubrics. Therefore, when many small particles are to be 
consecrated, a ciborium should be provided, or a second chalice. 
In case there is no ciborium or chalice, the small particles should be 
placed on the Mass corporal, in front of or on the side of the chalice. 
The use of a second corporal, to hold the small altar breads, is con- 
trary to the Rubrics, and could be justified only in a case of real 
necessity, when no ciborium or second chalice is to be had, and the 
small particles are too numerous to be placed on the Mass corporal. 
Even in this case, it were better to make one corporal out of the two, 
by unfolding both on the altar, and allowing one to overlap the other 
a few inches. This would be much better than folding the small 
particles in a second corporal and placing them thus folded on the 
Mass corporal. 
2. Regarding Cajus's conduct, we remark : 

1. When Cajus picked up the small particle from the floor, he 
should have kept it separate from the other particles, and consumed 
it before or with the first ablution. That was the only correct thing 
for him to do. 

2. Once the doubtfully consecrated particle was mixed with the 
consecrated particles, and its identity lost, Cajus should not have 
given Holy Communion with any of the particles, but should have 
put them all into a ciborium or chalice and reconsecrated them all, 
"suh conditione" at another Mass. 

3. If that was impracticable, as it was on Holy Thursday, be- 



DOUBTFUL CONSECRATION AND ITS CONSEQUENCES. 133 

cause there would be no other Mass on that day, Cajus should have 
removed some of the small particles from that place where he laid 
the doubtful host and placed them in a ciborium to be consecrated 
at another Mass, ''sub conditione," and then given Holy Communion 
with those that remained. For, in picking up the particle from the 
floor, and placing it with the others, Cajus could be morally certain 
just about where he placed it, and by removing the particles from 
that particular region, he would be morally sure that he had removed 
the doubtful particle. If the consecrated particles remaining did 
not suffice for the faithful, they might be broken. The inconven- 
ience of breaking them would not be a sufficient reason for giving 
Holy Communion with doubtfully consecrated particles. 

4. Strictly speaking, there remains still another way of removing 
the danger of material idolatry and doubtful Holy Communion. To 
give the communicant two sacred hosts is forbidden, when it is 
done "devotionis causa." 

That it is forbidden in the present instance can scarcely be main- 
tained. By so doing all danger would be removed. Of course, the 
sacred particles would not suffice in that case, but they might be 
broken in two, and two broken particles given to each communicant, 
taking care that the broken pieces given to each communicant be 
not parts of the same host. 

In order to secure himself against the danger of giving two 
pieces of the same host to the same communicant, the celebrant 
would have to divide the particles into various fragments; some 
into two pieces, some into four pieces, etc., and give the communi- 
cant a half and a fourth part of a host. 

5. It can not be denied that circumstances may arise where it 
would be practically impossible to divide the particles, as mentioned 
under No. 4 or even as under No. 3. 



134 THE CASUIST. 

Therefore, we will venture to remark, as a final solution of the 
difficulty, that it is more than probable that the particle picked up 
off the floor was a consecrated host. The likelihood that it was not 
is very meager. Therefore, the likelihood of giving Communion, 
in the present instance, with an unconsecrated host, is likewise very 
small; so small, in fact, that a priest would be justified in exposing 
himself to it in order to extricate himself from so embarrassing a 
situation. Nor does he do any one an irreparable injury by thus 
exposing them to the very slight danger of communicating under 
unconsecrated species. Nor would the small danger of exposing 
himself and the faithful to commit an act of material idolatry be 
a sufficient reason for abstaining from distributing all the particles 
in Holy Communion. 



XXXIII. DISPOSITIONS REQUIRED FOR SAYING 
MASS. 

Titius, a priest, at the annual retreat of the clergy, makes a gen- 
eral Confession for the past year. In the course of his Confession, 
the confessor asks him, whether, during the past year, he always said 
Mass with the right dispositions. To this Titius replies that once, 
having committed a mortal sin, he said Mass without having pre- 
viously gone to Confession. His reasons for doing so, he said, were 
that he was obliged to say Mass before he had an opportunity of 
going to Confession, because his confessor lived quite some distance 
from him, and there was no other priest to whom he could make his 
Confession, except his own assistant, who was much younger than 
himself, and besides was his nephew, and he could not bring himself 
to make his Confession to him. 

He admitted, also, that on another occasion he had fallen into a 
like sin, and had said Mass the next day without having gone to Con- 
fession, but having made an act of perfect contrition. His reason 
was that he could not have omitted Mass without giving grave 
scandal, and he had no "copia confessarii." The confessor inquired 
further of Titius whether in both of these instances he had complied 
with the Tridentine law of going to Confession "quam primum" 
after the Mass. 

Titius answered that he had complied with the law of the Council 
of Trent, by his weekly Confession, which happened, in these in- 
stances, about four or five days after saying Mass. In fact, Titius 
admitted, that on this second occasion he not only said Mass on the 
following day, when necessity obliged him to say it, but also on the 
three following days, when he might have easily omitted it. In this 

135 



136 THE CASUIST. 

he thought he was justified, because by an act of perfect contrition 
he had recovered the state of grace, and, being in the state of grace, 
he was free to say Mass every day if he so desired. 

Hearing all this the confessor hesitated in forming his judgment 
about Titius, and first put the following questions to himself : 

1. What dispositions of soul are required of a priest who desires 
to say Mass worthily? 

2. How are we to understand the law of the Council of Trent 
(s. xiii,, c. 7), which obliges priests to go to confession "quam 
primum"? 

3. Did Titius do wrong by saying Mass on these several occasions, 
and what is to be said about the reasons he advanced to justify 
himself? 

Solution. 

I. Benedict XIV treats this matter in his work "De Sacrosancto 
Missae Sacrificio" (lib. 3. c. 11), where he gives the common and 
sound teaching of all theologians, when he says: "Sacerdotem 
oportet esse in gratia, et ab omni lethali expiatum." If the state of 
grace is required of a lay person, before receiving Holy Communion, 
with much greater reason is it required of a priest, who desires to 
say Mass. 

Wherefore St. Thomas (3, q. 80, a. 4) treating this question, not 
especially in its relation to priests, but in its relation to all the faithful, 
whether priests or lay people, says : "quicunque cum peccato mortali 
Sacramentum Eucharistiae sumit, incurrit sacrilegium, tamquam 
sacramenti violator, et ideo mortaliter peccat." This doctrine he 
draws from the letter of St. Paul to the Corinthians : "qui manducat 
et bibit indigne, judicium sibi manducat et bibit." He interprets 
this text by the authority of Peter Lombard "indigne manducat et 
bibit qui in crimine est." The Council of Trent merely recalls the 



DISPOSITIONS REQUIRED FOR SAYING MASS. 137 

doctrine of St. Thomas, with the text from St. Paul, and then adds : 
"quare communicare volenti revocandum est in memoriam ejus 
praeceptum : probet autem seipsum homo." 

All of which, in our case, is equivalent to saying that as often as 
a priest is about to say Mass, and is conscious of mortal sin, it is nec- 
essary that he should first cleanse his soul from mortal sin and then 
approach the altar of God. Further on, the Council authentically in- 
terprets the text from St. Paul, and declares that the way to cleanse 
the conscience from mortal sin before Holy Communion is sacra- 
mental Confession. The words of the canon (12) are as follows: 

"Ne tantum Sacramentum indigne atque ideo in mortem et con- 
demnationem sumatur, statuit et declarat ipsa S. Synodus, illos quos 
conscientia peccati mortalis gravat, quantumcumque etiam se con- 
tritos existiment, habita copia confessoris, necessario praemittendam 
esse confessionem sacramentalem." With right, therefore, is this 
obligation of going to Confession before saying Mass, if conscious 
of mortal sin, drawn from the words of the apostle ; for whosoever 
approaches the holy table must have the testimony of a good con- 
science, and if he be in sin, he must needs cleanse his soul. Now 
the ordinary way of cleansing the soul frc«n mortal sin is by means 
of sacramental Confession. Therefore, sacramental Confession is 
necessary for any one desiring to receive Holy Communion and 
conscious of mortal sin. And, therefore, also, only in case of neces- 
sity is it sufficient to make an act of perfect contrition with a firm 
purpose of confessing. 

2. "Quodsi necessitate urgente," says the Council of Trent, "sa- 
cerdos absque praevia confessione celebraverit, quant primum con- 
fiteatur." This law is binding only on priests, solos sacerdotes ad- 
stringit. 

Two false interpretations have been put on this law of the Council 



138 THE CASUIST. 

of Trent. Both of them have been condemned by Pope Alex- 
ander VIL 

The first is that this law contains only a counsel or recommenda- 
tion, and not a strict command. This can not be maintained, because 
the Council of Trent uses the imperative mode. Therefore, Alex- 
ander VII (prop. 38 damnata) condemns any interpretation of the 
words of the Council that would destroy their imperative nature. 

The other false interpretation, condemned by the same Pontiff, 
says, "ilia particula quam primum intelligitur, cum sacerdos suo tem- 
pore confitebitur." To put such a construction on the words of the 
Council, says Alexander VII, would be to make the law ridiculous, 
"praeceptum esset derisorium." 

Quam primum, therefore, means the same day or at least within 
three days after saying Mass, for the word is to be taken in a moral 
sense, as in all human laws. All theologians are agreed on this. If 
the priest must say Mass the following day, he is not permitted to 
put off his Confession for three days, but must make his Confession 
the same day, if he can possibly do so. 

3. From what has been said we conclude that Titius did not act 
rightly in the first instance, because there was a confessor at hand, 
to whom he should have gone to Confession. That the confessor was 
younger than Titius, and his nephew, made no difference under the 
circumstances. He was a "verus confessarius et, in casu, neces- 
sarius." The shame that Titius would experience in making his con- 
fession to his nephew was not a sufficient excuse, because more or 
less shame accompanies all confession of sin. 

In the second instance, Titius acted according to the laws of the 
Council of Trent, and, therefore, is not to be blamed. 

In the third and fourth instances he sinned. 



XXXIV. USING THE FORM FOR INFANT BAPTISM IN 
THE BAPTISM OF ADULTS. 

Cajus, a priest, received into the Church and baptized a woman 
convert. When asked by a brother-priest if he did not feel em- 
barrassed by the number and frequency of the prostrations and signs 
of the cross "super oculos, os et pectus" contained in the form 
for adult baptism, he replied that he had not used the form for adults, 
but had baptized the person with the form prescribed for the baptism 
of infants, by virtue of a general indult granted by the Holy See to 
all the bishops of the United States. When his fellow-priest denied 
that there existed any such general permission for the whole of the 
United States, Cajus appealed to "The Priests' New Ritual," re- 
cently published by the John Murphy Company, of Baltimore, with 
the "Imprimatur" of his Eminence Cardinal Gibbons, and to the 
Prayer Book, published by order of the third PI. Council of Balti- 
more, and approved by the Apostolic Delegate of the Council, in both 
of which books it is expressly stated that "by special permission of 
the Holy See, this form (i, e., infant baptism) may be used in 
the United States for the baptism of adults." 

On the other hand, Cajus' fellow-priest appealed to Konings 
(II. 1,264) and to Sabctti (n. 666), where it is expressly denied that 
all the bishops of the United States have a general faculty to use 
the short form in baptizing adults. In their perplexity, now, both 
Cajus and his friend ask : Have the bishops of the United States a 
general permission from the Holy See to use the form for infant 
baptism in the baptism of adults ? 

As there seems to exist considerable confusion on this point, we 
take the liberty of giving a somewhat extended answer. 

139 



I40 THE CASUIST. 

On October 24, 1829, the bishops of the first Provincial Synod of 
Baltimore, i. e., the Archbishop of Baltimore, the Bishops of Bards- 
town, Charleston, Cincinnati, St. Louis, and Boston, and the Vicar 
Apostolic of Philadelphia petitioned Pius VIII to grant permission 
to the bishops of the United States to use the form for infant bap- 
tism in the baptism of adults. The reasons given by the bishops for 
their petition to the Holy See were that the form for adult baptism 
could not well be used in this country, because "caeremoniae quae- 
dam, ut prostrationes, signa crucls super oculos, os et pectus, scanda- 
lum parere possent, quando speciatim puellae vel feminae erunt bap- 
tizandae." This request of the bishops was granted by the Cong, de 
P. F. October 16, 1830, "ad viginti annos" (Coll. Lac. T. III. col. 
34). Therefore, there was a general permission granted by the 
Holy See, up to the year 1850, to use, throughout the United States, 
the shorter form in the baptism of adults. 

In the year 1852, the bishops of the first PI. Council of Baltimore 
again petitioned the Holy See that this privilege be renewed, either 
"in perpetuum," or at least for another twenty years. The bishops* 
petition was as follows : "Quoniam gravissimae rationes a Patribus 
Concilii primi Baltimorensis Provincialis, a. s, 1829 allatae, dum a 
Smo. Patre peterent ut pro baptizandis adultis, ea in hisce Provinciis 
uti liceret forma quae in Rituali Romano pro baptismate parvulorum 
invenitur, adhuc vigent, immo in dies graviores evasurae videntur- 
statuunt Patres S. Sedi supplicandum esse ut privilegium tunc ad 
viginti annos juxta Patrum preces concessum, nunc perpetuum fiat^ 
vel saltern ad viginti annos iterum concedatur." To this petition, the 
Cong, de P. F. answered, August 30, 1852, as follows: "Precibus 
istis relatis ab Emo. ac Revmo. D. Raphaele Cardinali Fornari in 
generali S. Congregationis conventu, habito die 30 Augusti, 1852, 
Emi. Patres censuerunt supplicandum SSmo. pro indulti proroga- 



USING INFANT BAPTISM FORM IN BAPTISM OF ADULTS. 141 

tione ad quinquennium, atque ita ut interim Episcopi paulatim ad 
observantiam ritus descripti pro adultorum baptismate in Rituali 
Romano accedere satagant." 

By this decree, the privilege of using the short form throughout 
the United States was extended to the year 1857. 

In the year 1858, the second Provincial Council of St. Louis, there 
being present the Archbishop of St. Louis, the Bishops of Nashville, 
Milwaukee, Santa Fe, Alton, Dubuque, Chicago, and St. Paul, and 
the Vicar Apostolic of the Indian Territory, petitioned the Holy See, 
"ut in baptismo adultorum liceat uti forma in baptismo parvulorum 
adhibita, usque dum S. Sedes aliter statuerit." 

To this the Cong, de P. F. replied on February 6, 1859, "benigne 
annuit pro gratia juxta preces, et interim curent de inducenda form- 
ula pro adultis a Rituali Romano praescripta." 

By this decree there was granted to all the dioceses composing, in 
1859, the Province of St. Louis, the privilege of using the short 
form in adult baptism, "usque dum S. Sedes aliter statuerit." As 
the Holy See, up to the present, has not decreed otherwise, all the 
territory comprised in 1859 by the dioceses of St. Louis, Nashville, 
Milwaukee, Santa Fe, Alton, Dubuque, Chicago, St. Paul, and the 
Indian Territory, still enjoy the privilege of using the form for infant 
baptism in the baptism of adults. "Tale indultum, 6 February, 
1859, Provinciae S. Ludovici concessum est, adhuc vigens (donee 
revocetur) in omnibus dioecesibus, quas isto anno 1859, Provincia 
S. Ludovici comprehendebat" (Wapelhorst, Comp. Liturg. p. 413). 

In the meantime the general permission for the whole of the 
United States to use the short form in baptizing adults expired with 
the year 1857, and except in cases where it was renewed to individual 
bishops, as in the case of the St. Louis Province, the bishops of the 
United States were obliged to use the long form in adult baptism. 



142 



THE CASUIST. 



In the year 1866, the bishops of the second PI. Council of Balti- 
more petitioned the Holy See "ut privilegium, olim quibusdam hujus 
regionis Dioecesibus ad annum usque 1870 concessum, quo liceat pro 
adultis baptizandis formulam breviorem pro parvulis constitutam 
adhibere Summus Pontifex ad decem vel ad viginti annos omnibus 
extendere dignaretur," 

To this the Cong, de P. F., January 24, 1868, replied : "Porro S. 
Congregatio censuit Episcopos recurrere debere, expleto tempore 
postremae concessionis." That is to say, that in 1866, when the 
bishops petitioned the Holy See for an extension of this privilege, 
there were some dioceses which were enjoying the privilege, and 
the same would continue to enjoy it up to the year 1870, not by virtue 
of any general indult granted to all the bishops of the United States, 
but by reason of a special extension made to some individual bishops. 
The bishops of the Province of St. Louis, of course, were at this 
time enjoying this privilege, not only until the year 1870, but until 
revoked, 

O'Kane (Rubrics, n. 459) says: "In the United States of America 
until recently the ceremonies prescribed for infant baptism were 
used in the baptism of adults also, in virtue of faculties granted by 
the Holy See. In 1852 these faculties were renewed only for five 
years, with an intimation that they should not be again renewed; 
and accordingly since 1857, the American clergy are required to 
observe what is prescribed by the rubrics for adult baptism." What 
O'Kane says here is true, in this sense, that wherever, in the United 
States, since 1857, the form for infant baptism is used in the bap- 
tism of adults, it is used by virtue not of any general permission to 
all the bishops of the United States, but of a special indult obtained 
by individual bishops. Wherever no special permission has been 
obtained since 1857, the clergy are obliged to use the form for adults 



USING INFANT BAPTISM FORM IN BAPTISM OF ADULTS. 143 

in the baptism of adults. However, as it has been renewed since 
then in particular cases, as in the case of the St. Louis Province 
and the tenth Provincial Council of Baltimore, what O'Kane says 
is not strictly correct. 

O'Kane takes it for granted that after 1857, the permission would 
not be renewed to the American bishops, neither collectively nor in- 
dividually, on account of the intimation given by the Cong, de P. F. 
to that effect. In this, however, he was mistaken. In 1869 the 
bishops of the tenth Provincial Council of Baltimore petitioned the 
Holy See for an extension of the privilege "enixe, uno ore censuer- 
unt S. Sedi supplicandum esse pro extensione hujusmodi conces- 
sionis, ad decennium saltem, omnibus Provinciae Baltimorensis 
dioecesibus." 

The Cong, de P. F. granted this, but not for ten years, but only 
for five. 

Outside the territory included, in 1859, by the Province of St. 
Louis, the solution of the question as to the privilege of using the 
short form for the baptism of adults depends on a question of fact. 
Have the respective bishops applied for and obtained an extension of 
this privilege? The question is not easily answered. Father Smith 
(notes on second PI. Con. Bait. n. 214) has this to say: "To this 
question we can not return a satisfactory answer. In the diocese of 
Newark nothing definite is known by the clergy. The bishop may 
possess such a privilege, but the fact has never been communicated 
to the priests, and they are left to guess whether or not the faculty 
has been prolonged. The same, we are informed, is the case in 
various other dioceses. Hence a diversity of practice in this regard 
is gradually becoming prevalent. Some priests take it for granted 
that these privileges have been renewed again; others, however, 
doubt this. The former, of course, use the ceremonies of infant bap- 



144 ^^^ CASUIST. 

tism, even in the baptism of adults; the latter are not always con- 
sistent in the matter, some of them using the short form, others the 
long one. It would, therefore, seem desirable to have some positive 
measures adopted on this point by our prelates." 

As regards the case of Cajus, we answer that if he is located 
within the territory comprised, in 1859, by the Province of St. Louis, 
that is to say, if he is located in the archdioceses of St. Louis, Chi- 
cago, Milwaukee, St. Paul, Dubuque, or Santa Fe, or in the dioceses 
of Nashville, Alton, or the Indian Territory, or in any diocese that, 
since 1859, has sprung from the aforesaid dioceses, then he did right 
in using the short form for baptizing an adult. If he is located out- 
side that territory, he must inquire whether his bishop has obtained 
any special faculties in the matter. If his bishop has not obtained 
any special permission, or if Cajus can not establish the fact, he is 
obliged to observe the general law of the Church, which is to baptize 
adults with the rubrical form prescribed for the baptism of adults, 
unless he judge prudently that grave scandal might be given by its 
use, which may easily be, according to the Fathers of many Amer- 
ican Councils, "quando speciatim puellae vel feminae erunt bap- 
tizandae." 

The words of the Prayer Book, published by order of the third 
PI. Council of Baltimore, and of the "Priests' New Ritual," stating 
that the short form may be used throughout the United States, by 
general permission of the Holy See, should be changed, since they 
are not true. 



XXXV. MAY A CATHOLIC GIRL ACT AS BRIDESMAID 
AT A NON-CATHOLIC MARRIAGE? 

Bertha in Confession asks her confessor if it would be sinful for 
her to act as bridesmaid for her friend Stella, who is a Protestant, 
about to marry a Protestant, and in a Protestant church. The con- 
fessor replies that in his opinion Bertha would not sin, inasmuch as 
the contracting parties' action is not sinful, scl, marrying coram 
ministro ; and, since the contracting parties are the ministri. Bertha 
is only a witness to the contract, and, strictly speaking, does not 
take part in heretical services any more than the other friends pres- 
ent to see Stella married. The witnesses take no part actively in the 
religious ceremony — they are only passive witnesses to it. How- 
ever, the confessor advises Bertha that it is not expedient for her to 
act as bridesmaid, since it might possibly give scandal, and she prom- 
ises not to do so. 

Afterward, in discussing the case with some brother priests, the 
confessor is condemned for his opinion that Bertha would not sin ; 
on the contrary, it is asserted that the confessor would have done 
wrong to give Bertha absolution in the event of her refusing to 
follow his advice. It was asserted that a case was referred to a 
certain seminary faculty, where a young lady wished to act as 
bridesmaid for Protestants ; and it was alleged that a negative was 
given, and absolution forbidden if she did so. 

It was also stated that in Germany, in some dioceses, it would be 
excommunication to act as witnesses to a Protestant marriage. The 
confessor still maintains his opinion that absolution is not to be de- 
nied if the penitent persists in her design of acting. And he main- 
tains that as the other friends are not held in these parts to commit 

145 



146 THE CASUIST. 

any sin in going to the church to witness the wedding in pews, so 
Bertha, a more prominent witness, is taking no more real part in 
heretical worship than they in the body of the church. 

The principle which governs the solution of this case is the prin- 
ciple laid down by all theologians, that it is not lawful for Catholics 
to take part in a false worship. If acting as bridesmaid at a non- 
Catholic wedding in a non-Catholic church in this country is con- 
sidered a "communicatio in divinis," then it is not lawful for a 
Catholic to act in such capacity. If, however, acting as bridesmaid 
at a non-Catholic wedding in a non-Catholic church — in the United 
States — is not generally considered a "communicatio in divinis," then 
it may be lawful for a Catholic to act as such, provided it does 
not become unlawful for some other reason, v. g., on account of the 
scandal it might occasion, or the danger of perversion, or because it 
has been forbidden by the statutes of the diocese. 

About the principle that it is not lawful for a Catholic to take part 
in a false worship, there is no dispute. The difficulty lies in de- 
termining whether the case before us comes under the principle. 

We do not deny that in a very special case it might be evidently 
unlawful for a Catholic to act as bridesmaid at a non-Catholic 
marriage, because such conduct could scarcely be viewed in any other 
light than as a "communicatio in divinis," owing to the distinctly 
religious coloring given to the ceremony by the religious opinions of 
the contracting parties and the officiating minister. But the case 
before us is this : Is the marriage of non-Catholics in this country, 
though performed by a minister and in a Protestant church, gen- 
erally looked upon as a religious rite, or is it considered merely as a 
civil contract? The mere fact that a marriage is performed by a 
minister of the Gospel, or in a Protestant church, does not make it 
a religious rite. It is made a religious rite by the beliefs and inten- 



MAY CATHOLICS ASSIST AT NON-CATHOLIC MARRIAGE? i^-j 

tions of the contracting parties and the minister, as well as of the 
religious denomination to which they belong, and the view that the 
public takes of it. If these perform it as a religious rite, and view it 
as such, then indeed it becomes a religious rite, and consequently a 
false worship. If, however, they do not consider it or perform it as 
a religious rite, then the mere fact that it is performed by a preacher, 
or in a non-Catholic church, does not constitute it a religious rite. 
The question, therefore, is reduced to this : Are non-Catholic mar- 
riages in this country looked upon, either by the parties contracting 
them or by the religious denomination to which such parties belong, 
or by the community generally, as a religious rite ? 

To this question American theologians answer in the negative. 
Non-Catholic marriages in the United States, although performed by 
a minister in a Protestant church, are not looked upon, as a general 
rule, as anything else than a civil proceeding, a serious social contract. 

Archbishop Kenrick (Th. Mor. tr. XIII. n. 33) says: "Adstare 
nuptiarum celebrationi aestimatur plerumque obsequii erga sponsos 
indicium quin ritus heretici probentur." 

Father Konings (I. n. 254) says: 

"Idem dicit Kenrick, non esse peccatum, cum aliis de adstantibus 
nuptiarum coram haeretico praecone contractarum celebrationi, cum 
id plerumque non ut ritus haeretici approbatio aestimetur, sed ut 
obsequii erga sponsos indicium. Utrum vero idem dici possit de iis 
qui paranymphi (groomsman or bridesmaid) officio hac occasione 
funguntur, sapientioribus decidendum relinquo; multum hac in re 
tribuendum est communi aestimationi in populo vigenti ; quod enim, 
haereticorum ritu nullatenus participato, civile tantum obsequium 
censetur, falsae religionis professio haberi nequit." 

Father Sabetti, S.J., (Am. Eccl. Rev. June, 1890) says: "De 
assistentia matrimonio eadem danda est solutio; nam hujusmodi 



148 THE CASUIST. 

actio apud nos reputatur ut merum officium civile et signum amici- 
tiae. Nee circumstantia quod Veronica egerit partes principalis as- 
sistentis puellae (first bridesmaid), ullam facere debet difficultatem; 
siquidem illae ad tale munus seligi solent quae ex una parte sunt ad 
illud implendum aptiores ratione aetatis et civilis conditionis, et ex 
alia majori amicitia et strictiori vinculo benevolentiae feruntur erga 
sponsam. Hoc autem ostendit hujusmodi officium juxta mores nos- 
tros non reputari religiosum, nee ullam importare cultus participa- 
tionem." 

That the vast majority of non-Catholics in the United States look 
upon the marriage contract as a purely civil contract, possessing 
no sacramental or religious character, is a statement that hardly ad- 
mits of question. All legislation concerning it is handed over to the 
State, and the minister performing the ceremony considers himself 
as acting for and in the name of the State, and marries all persons, 
who are allowed by the State to contract marriage, whether they 
belong to his particular religious denomination or another, or to no 
denomination at all. He marries believers and unbelievers alike, 
baptized and unbaptized, only solicitous that they be authorized by 
the civil law to marry. "The fact that weddings are usually ratified 
in a church is due partially to a traditional instinct which retains the 
solemnity of a sacred function for an act regarded merely as a grave 
social and civil contract" (Am. Ecc. Rev., Vol. vi., p. 465). 

European theologians take a somewhat stricter view of this ques- 
tion, influenced, no doubt, by conditions of society obtaining in Europe. 

Thus Genicot, S.J. (I., n. 200), says: "Insuper abstinendum est 
ab iis functionibus, quae involvant sectae agnitionem, v. g., a munere 
testis, qui contractui matrimoniali auctoritatem concilit." 

Lehmkuhl (I. 295) says: "Ad nuptias vero vel sepulturam hetero- 
doxi accedere, quum pro honore civili tantum habeatur, communiter 



MAY CATHOLICS ASSIST AT NON-CATHOLIC MARRIAGE? i^^ 

licet. Tamen etiam in his actionibus attendendum est num adsit 
propter circumstantias scandalum, perversionis periculum, specialis 
prohibitio." 

Ballerini-Palmieri (n. 96) says : "An Catholicos licet adesse haer- 
eticorum nuptiis, quas haeretici celebrant valide quidem sed coram 
ministro haeretico et ritu haeretico? Distinguendum est inter eos 
qui simpliciter adsunt et eos qui testium munere fungentes auc- 
toritatem conciliant contractui. Hi enim communicant cum haereticis 
in eorum re sacra et implicite auctoritatem illius sectae ej usque min- 
istorum agnoscunt, quod, ut diximus, non licet." 

It may be interesting to quote an author of as long ago as Lugo, 
though times and conditions have undergone vast changes since his 
day. Lugo, in his tract on faith (no. 157), says about acting as 
groomsman or bridesmaid at a non-Catholic wedding : 

"Dubitari potest, tertio, an Catholicus non solum licite assistere 
possit nuptiis haereticorum, sed etiam in eisdem casibus paranymphi 
officio fungi, quando ad solemnitates adhibentur paranymphi, qui 
de more sponsos ad templa deducunt. Respondeo ex dictis, con- 
siderandum esse quale sit munus paranymphi, qui ab aliis pronubus 
vocatur, et ab antiquis auspex. Si ad eum solum pertineat tradere 
sponsam sponso, vel e contra postquam legitime conjuncti sunt, nihil 
apparet illicitum in eo munere, cum sit actio mere civilis. Si vero 
ejus munus sit quasi afferre sponsos ministro, ut eos conjungat, jam 
videtur habere participationem in ritibus, quibus minister haereticus 
eos conjungit et recurrere ad ipsum tamquam ad ministrum Ecclesiae, 
ejusque ministerium approbare, quod illicitum est." 

In the year 1719, the Propaganda laid down the general rule for 
missionaries, "quod communicatio in divinis cum haereticis et schis- 
maticis, ut illicita regulariter habenda est in praxi, vel ob periculum 
perversionis in fide Catholica, vel ob periculum participationis in ritu 



I50 



THE CASUIST. 



haeretico et scliismatico, vel denique ob periculum et occasionem 
scandali." 

On May lo, 1770, the Congregation of the Holy Office answered, 
"Smus. decrevit CathoHcis regulariter non licere haereticorum aut 
schismaticorum concionibus, baptismis matrimoniis interesse." 

We are inclined to think, therefore, that as far as the United States 
is concerned, non-Catholic weddings are not, as a rule, religious 
affairs, but rather mere civil contracts, and to assist at them or to act 
as groomsman or bridesmaid is not a "communicatio in divinis," 
and is not, therefore, on these grounds, unlawful for Catholics. In 
a given instance, as we have remarked above, a non-Catholic mar- 
riage may be a religious rite, and, in that case, it would not be lawful 
for Catholics to take part in them as groomsman or bridesmaid. 

But on other grounds it may be unlawful for Catholics to act as 
groomsman or bridesmaid at a non-Catholic wedding, namely, where 
such conduct would give scandal or create danger for the Catholic's 
faith, or where it has been forbidden by the diocesan authorities. 
And as these dangers may exist in any given case, each case should 
be considered on its own individual merits. 

Where there is a good reason for a Catholic girl, for instance, to 
act as bridesmaid at a non-Catholic wedding, and where the mar- 
riage ceremony can not be considered a sacred rite, and where no 
scandal is given and no risk taken for her faith, a priest in the 
United States is justified in permitting such a girl to take part in 
the wedding, and would scarcely act wisely in refusing her absolu- 
tion, if she would not promise not to take part. 

But where there is no serious reason for a Catholic girl to act as 
bridesmaid at such a marriage, and where she may decline without 
serious inconvenience to herself and to others, we think it the part 
of prudence for a confessor or pastor to induce her to decline. 



XXXVI. WHERE SHOULD A NEW-BORN CHILD BE 
BAPTIZED? 

Titia, until her marriage a year ago, lived with her parents in the 
parish of N., where Cajus is pastor. Upon her marriage, she went 
to live with her husband in a neighboring parish, some twenty 
miles distant, and has lived there ever since. A few weeks ago, 
about to become a mother, she returned to her parents' home and 
there gave birth to a strong, healthy boy. The following day Titia's 
mother took the baby to Cajus, the parish priest of N., to have it 
baptized. Cajus at first demurred, thinking that the baby ought to 
be taken to the present pastor of Titia and her husband, and he did 
not wish to give cause for criticism. However, on second thought, 
he concluded to baptize the child, and to send the stipend to Titia's 
actual pastor. On another occasion, a girl who was brought up in 
a neighboring parish, where her parents still live, married a man 
from Cajus' parish and lives there at present with her husband. 
When she was about to be confined, she returned to her parents' 
home and was confined there, but had the child brought to Cajus 
to be baptized, as he was her parish priest at present, and she 
liked him better than the pastor of the town where she was confined. 
This child Cajus also baptized, because although born outside his 
parish, it belonged to his jurisdiction, since its parents had their 
actual domicile in his parish. Cajus' way of doing gave rise to con- 
siderable discussion among his brother priests, some of whom de- 
fended him, while others censured him. In his dilemma, Cajus de- 
sires to know : 

I. Was he right in baptizing a child born within his parish, but 
whose parents have a fixed dwelling outside of the parish ? 

151 



152 THE CASUIST. 

2. Was he right in baptizing a child born outside his parish, but 
whose parents are his parishioners ? 

To the first question we answer yes. Cajus did right in bap- 
tizing the child born in his parish, although its parents had their 
domicile in another parish, and had no quasi domicile in his parish. 
St. Alphonsus, 1. 6, tr. 2, de Bap. n. 115, says: "Si mulier casu pariat 
in pago non suo, proles ab illius pagi parocho est baptizanda. 
Verumtamen, si pagus ille parum distet a pago proprio, v. g. duabus 
aut tribus horis, potest baptizari proles etiam in ecclesia sua." 

According to St. Alphonsus, therefore, the child has the privilege 
of being baptized wherever it is born. If it is not born in the parish 
of its parents, and if that parish is not far distant, for example, ten 
or twelve miles, then the child may be taken home to the parish 
priest of its parents to be baptized, but it need not be. In that case, 
both priests are parish priests "in ordine ad Baptismum." It is very 
easy to understand the reasons why a child ought to be bap- 
tized where it is born. If it had to be taken home to the parish 
where its parents reside, it would have to be separated from its 
mother for a long time, and at a most critical moment of its ex- 
istence, or else it would have to be deprived of the grace of Bap- 
tism until its mother is sufficiently recovered to accompany it, which 
would be several weeks at least, and sometimes longer, so that the 
child would be exposed to the danger of dying without Baptism. 
This latter, of course, is against the will and desire of the Church, 
which commands that the child be brought to Baptism as soon as 
possible after its birth. It is always not only the privilege, but 
also the duty, of the pastor of the place where the child is born to 
baptize it if the child is taken to him, and he retains the stipend 
offered for the baptism as his own. If the parish of the child's 
parents is not too far distant, that is, if the child is exposed to no 



WHERE SHOULD A NEW-BORN CHILD BE BAPTIZEDf 15^ 

risk by being taken back to its parents' parish to be baptized, then 
it may be taken there, but there is no obligation to do so. St. Alphon- 
sus limits the distance that the child may be carried to be baptized 
by its parents' pastor to ten or twelve miles. 

The holy doctor lived, of course, when there were no railroads or 
other modern means of transportation, and ten or twelve miles in 
a stage coach or on foot was the measure of fatigue that a child 
could endure, and the time spent in making the journey the limit of 
time that a new-born babe might safely be separated from its mother. 
With modern methods of transportation, and the progress made 
in the artificial nursing of children, a new-born child might be car- 
ried much farther to-day than in the days of St. Alphonsus, and yet 
run no risk. Still, modern theologians follow St. Alphonsus in 
determining the distance that a child may be carried in order to have 
it baptized by the parish priest of its parents. 

Thus Genicot, 11. , n. 139: "Si mulier pariat in pago non suo, 
proles ab illius pagi parocho est baptizanda. Verumtamen, si pagus 
ille parum distet a pago proprio, e. g. tribus leucis, potest proles 
etiam ad ecclesiam suam deferri." 

Bucceroni, S.J., de Bapt. n. 422 : "In qua paroecia baptizari debeat 
infans, si parentes nee domicilium vel quasi-domicilium habeant, 
vel ab illo distent? Si mulier casu pariat in pago non suo, proles 
ab illius pagi parocho est baptizanda; verumtamen, si ille pagus 
parum distet a pago proprio, v. g. duabus aut tribus horis, potest 
baptizari proles etiam in ecclesia sua." 

Lehmkuhl, II. n. 66 ad 3 : "Imo si mulier parit in loco non suo, 
infans baptizandus est a parocho loci, ubi peperit mater et decumbit, 
nisi forte aeque bene ad proprium parochum deferri possit; imo si 
parochia patria non distat ultra 3 leucas, semper licet ad proprium 
parochum infantem deferre." 



154 



THE CASUIST. 



Kenrick, de Bapt. n. 14, Aertnys, C.SS.R., de Bapt n. 35, Konings, 
1258, etc., all repeat almost verbatim the words of St. Alphonsus, 
who himself takes this opinion from the theologians who pre- 
ceded him, V. g., Croig, n. 275, Salmant, de Bapt. c. 4. p. 4, n. 58. 

Therefore, we conclude, that in the first instance Cajus did right 
in baptizing the child born in his parish, but whose parents lived in 
another parish. 

Cajus did right also in the second instance, namely, baptizing a 
child whose parents lived in his parish, but which was born in a 
neighboring parish. This is evident from the answer just given 
to the first question. In this second case, if the child had been born 
in a parish far distant from Cajus' parish, and he had been con- 
sulted beforehand, he should have advised the parents to have the 
child baptized where it was born, as, under ordinary circumstances, 
that would have been better for the child from every point of view, 
and more according to good order and the fitness of things. If, how- 
ever, the parents had not consulted him beforehand, but had re- 
turned home with the child and asked him to baptize it, he was per- 
fectly within his rights in baptizing it. 



XXXVII. A RECENT PAPAL DISPENSATION "SUPER 
MATRIMONIO RATO ET NON CONSUMMATO." 

Miss A. R., twenty years of age, living in Linz, Austria, was 
married in 1894 to a Catholic young man, twenty-four years of age, 
in one of the parish churches of that city. After a wedding trip to 
Vienna, the young couple returned to Linz and took up their resi- 
dence there. From the start, the marriage had not been a very 
happy one. Though the couple had conjugal relations, still the 
marriage remained "non consummatum." The husband was fully 
aware of this fact, but the wife, being quite innocent and ignorant 
of the physiology of marriage, never realized that the marriage was 
not consummated. 

This continued for eight years. In the year 1902, the wife, in a 
confidential talk with a lady friend, expressed her regret that she 
had never been blessed with children, though she longed very much 
for them and prayed for them. From this lady the wife learned 
of the true state of affairs between herself and her husband. This 
friend's husband, a lawyer, hearing from his wife how things were 
going on between A. R. and her husband, suspected that there might 
be an impediment of impotency on the part of the husband, and 
persuaded A. R. to submit to a medical examination. The physician 
found that A. R. had never been violated, and that there was no, 
fault as far as she was concerned, because she was perfectly capable 
of consummating the marriage. 

Upon this testimony of the physician, the wife immediately be- 
gan proceedings in the civil court against her husband, with the 
view of being divorced, because there was a nullifying impediment 
of impotency from the start, and the civil law grants divorces for 
that cause. 

15s 



X56 THE CASUIST. 

The court ordered two of its own physicians to examine the wife, 
and their testimony, under oath, agreed with the testimony of the 
first physician who examined A. R., namely, that she had never 
been exposed. On April 25, 1902, the civil court pronounced the 
marriage invalid, and authorized A. R. to contract a new marriage, if 
she so desired. 

On the advice of the physicians, the court would not affirm that 
there was an impediment of absolute impotency on the part of the 
husband, but it did affirm that the evidence left no room to doubt 
that there was an impediment of relative impotency proven against 
the husband. 

On being informed of the decision of the court, the husband ap- 
pealed the case. The court of appeal held that by continuing to 
live with her husband after she had learned of his impotency, she 
had forfeited her right to a divorce, under the act. The case was 
then taken to the highest court in the land, which sustained the 
findings of the first or lowest court, and granted a full divorce "a 
toro et a vinculo," on September 2, 1902. This ended the pro- 
ceedings, as far as the civil law was concerned. The marriage was 
declared null and void, and was ordered so entered in the marriage 
records of the parish church. 

In the same month of September, 1902, the now civilly divorced 
wife, A. R., appeared in the Bishop's court, in order to have her 
marriage annulled also by the Church authorities. 

The Church authorities, however, were not long in realizing that 
it would be very difficult to institute canonical proceedings to 
establish the original invalidity of the marriage, since the husband 
refused to appear in the Bishop's court, and wholly ignored the 
summons to do so. He said that, as far as he was concerned, the 
civil authority had annulled his marriage with A. R., and that was 



A RECENT PAPAL DISPENSATION. 157 

quite sufficient. He considered any action by the Church authorities 
superfluous, and refused to aid in any manner whatsoever their 
proceedings. As there was no way of compelling him to appear 
and testify in the Bishop's court, the Church authorities were 
obliged to proceed without his testimony. The only way open to 
them seemed to be to procure a papal dispensation "super matrimonio 
rato et non consummato." This course appeared advisable, because, 
even though the husband had refused to appear or testify, the 
civil law had accepted the evidence submitted by the physicians 
as to the inviolated condition of the wife, and had pronounced the 
marriage invalid, even though the husband had not been examined. 
Accordingly, two physicians and seven witnesses (testimonium 
septimae manus) were placed under oath to examine the wife, while 
the wife herself was put under oath to testify. The wife gave 
the same testimony about her married experience that she had 
given in the civil court. The two physicians swore to her in- 
violated condition. The seven witnesses could say nothing about 
her married life, since she had never spoken to them about it, but 
they all declared that they knew her intimately, as they were her 
next of kin, and that she was a pious, pure, and truthful person. 
There was no testimony "septimae manus" concerning the hus- 
band, since no witnesses could be procured who knew him suffi- 
ciently well or intimately to justify them in giving witness in his 
case. As the plaintiff had urgently besought the Bishop's court to 
give a decision with all possible despatch, since she had no means 
of support, and must in the meantime look to her mother for as- 
sistance, who also was poor, the Bishop presumed the permission 
of the Holy See to institute a canonical trial "de matrimonio in- 
quirendo," which course was afterward approved by the Holy See. 
A full account of both trials, together with all the documents and 



158 THE CASUIST. 

papers in the case, and the sworn testimony of the witnesses, was 
forwarded to the S. Congregation of the Council at Rome, Novem- 
ber I, 1902. The following reasons were urged why the Holy See 
should grant a dispensation in the case : 

1. The poverty of the petitioner, who had now the opportunity 
of contracting a new marriage, and thus providing for herself, 
whereas, if a new marriage were made unlawful for her, she would 
be obliged to go to work as a servant, or become a burden to her 
mother, who was without means to help her. 

2. The danger to which she would be exposed of losing her 
faith — a danger which was real and present, by marrying a non- 
Catholic, or contracting a civil marriage, which was her privilege 
under the civil law. 

3. It was further urged that there would be no "scandalum aut 
admiratio fidelium" to fear, since the decision of the civil court 
was already known, and a favorable rather than unfavorable decision 
was likewise expected from the Church authorities. 

All through the winter of 1902-3 private means were taken to 
urge the authorities in Rome to act with expedition, and finally, 
in the beginning of May, 1903, word was received that the case 
would come up for consideration in the session of the S. Congre- 
gatio Concilii on the i6th of May. And so it did. After a thor- 
ough investigation of the whole trial by a learned Canonist and the 
"Defensor vinculi," both of whom approved the finding of the 
court, the following Dubium was laid before the Sacred Congre- 
gation : 

"An sit consulendum SS. mo: pro dispensatione super matri- 
monio rato et non consummato in casu ?" 

The Congregation replied : 

"Praevia sanatione actorum (because authorization had not been 



A RECENT PAPAL DISPENSATION. 159 

obtained beforehand by the Bishop's court from the Holy See to 
institute proceedings) affirmative ad cautelam." 

The Cardinal Perfect of the Sacred Congregation laid this reply 
of the Congregation before the Holy Father on the i8th of May, 
who then granted a dispensation "super matrimonio rato et non 
consummato." On June 8 following, A. R. contracted a new 
marriage with the approval and blessing of the Church, 

The case provoked no public criticism or comment of any kind, 
and was not even mentioned in the newspapers. In some private 
circles, especially in one sewing circle, considerable gossip was in- 
dulged in. But the fact that A. R., even after eight years of mar- 
ried life, was declared by competent physicians to have preserved 
herself inviolated, shamed busy tongues into silence. 

Had A. R. been rich instead of poor, much comment might have 
been occasioned as to the power of money to purchase dispensa- 
tions. 



XXXVIII. ARE BAPTIZED NON-CATHOLICS BOUND 
BY THE LAWS OF THE CHURCH? 

Miss X., a non-Catholic young lady, being convinced of the truth ^ 
ol the Catholic Church, and desirous of becoming a Catholic, meets 
with so much opposition from her parents that she decides to post- 
pone her conversion until she reaches her majority. In the mean- 
time, however, she is in doubt as to the line of conduct she ought 
to follow in regard to hearing Mass on Sundays and abstaining 
from the use of flesh meat on Fridays and other days of abstinence. 
Being conscientious about the matter, she consults a priest as to 
her duty under the circumstances. The priest informs her that she 
will have to hear Mass on Sundays and holydays of obligation 
and abstain from meat on Fridays and other forbidden days, just as 
if she were already a Catholic. His reason for this decision is that 
baptized non-Catholics are subject to the laws of the Church just 
like Catholics. The disobedience of heretics does not destroy the 
jurisdiction of the Church over them, neither does the Church "de 
facto" exempt them from the observance of her laws. Therefore 
he concludes that Miss X. is obliged to keep the laws of the Church 
regarding the hearing of Mass on Sundays and holydays of obliga- 
tion and abstaining from the use of flesh meat on Fridays and other 
days of abstinence. From this latter obligation, however, namely, 
the obligation of abstaining, the priest dispenses her, by virtue of the 
general faculties he holds from the bishop. 

Now it is asked : Is the position taken by the priest absolutely 
correct ? At first sight it might seem to be correct. However, upon 
examination, it will be found to be incorrect in some points, and 
in others only probably correct, and therefore not a sufficient basis 

1 60 



ARE BAPTIZED NON-CATHOLICS BOUND BY LAWS? 161 

upon which to found a sure and certain obligation, binding in con- 
science. 

1. Practically speaking, before inquiring further into the duty of 
Miss X. in her present circumstances, we should first of all endeavor 
to establish the validity of her non-Catholic baptism. Was Miss X. 
ever validly baptized? Because if there is reasonable ground for 
doubting the validity of her non-Catholic baptism, then she was only 
probably baptized, and therefore probably also never subject to the 
laws of the Church. 

For although "in foro externo" those who have been doubtfully 
baptized are looked upon as having been validly baptized, as far as 
the obligations consequent on baptism are concerned, still this does 
not hold good "in foro interno," where there is question of an ob- 
ligation binding in conscience. 

2. If, however, there are no good grounds for questioning the 
validity of Miss X.'s non-Catholic baptism, then we find theologians 
divided as to her obligation to obey the laws of the Church before 
making her submission to the Church. 

Although there are very good theologians who hold that Miss X. 
is bound by the laws of the Church in the present circumstances, 
still there are other good theologians and canonists who contend 
that she is not bound by these laws. All the theologians are agreed 
that the Church's jurisdiction extends to all baptized persons, in- 
cluding heretics and schismatics, so that the Church may legislate 
even for baptized non-Catholics, though they be cut off from external 
communion with her. 

The only question which divides the theologians is this : Does the 
Church actually intend that all her laws shall be binding on all her 
baptized children, including heretics and schismatics? Or is there 
reasonable ground for distinguishing between some laws of the 



1 62 THE CASUIST. 

Church and others, and saying that the Church desires that some 
of her laws should bind all alike, Catholics and non-Catholics, pro- 
vided they are baptized, and that others of her laws she makes 
binding on Catholics alone? 

The theologians who contend that all the Church's laws are 
binding on all baptized persons, advance the reason that it can not 
be the intention of the Church that her disobedient children should 
profit by their sin of heresy or schism by being exempted from laws 
that are binding on the faithful and obedient. 

The theologians who hold that not all laws of the Church are 
binding on heretics and schismatics, make the following distinction : 
Some laws of the Church aim directly at the removal of abuses, at 
promoting the public good and safeguarding Christian society, as, 
for instance, the laws concerning marriage impediments and others, 
which the Church has repeatedly declared to be binding on all bap- 
tized persons. Other laws of the Church aim directly at the sancti- 
fication of souls, as, for example, the laws of hearing Mass on Sun- 
days, and abstaining from flesh meat on Fridays, and these laws the 
Church does not wish to be binding on baptized non-Catholics, be- 
cause the only result of such an intention on the part of the Church 
would be to multiply sin. 

Thus De Angelis, Prael. jur. can. 1. I. tit. 2, n, 13, says that the 
whole question resolves itself into this : Does the Church wish to hold 
heretics and schismatics to her laws ? 

"Et si quid in hac materia liceat opinari, nostra mens est, eos 
maxime teneri illis legibus observandis, quae ad abusus compe- 
scendos, aut ad ordinem publicum et honestam conversationem tuen- 
dam in societate Christiana latae sunt, puta leges de impedimentis 
matrimonii, praesertim dirimentibus, aliaeque; namque plus semel 
Auctoritas Ecclesiastica requisita, expresse vel aequlvalenter eos 



ARE BAPTIZED NON-CATHOLICS BOUND BY LAWS? 163 

teneri asseruit. Si vero sermo sit de aliis legibus ecclesiastics, quae 
ad sanctificationem personarum directe tendunt, eos ab Ecclesia 
non obligari est dicendum, cum Ecclesia perspiciat eos contumaciter 
resisturos, et hoc nihil aliud esset nisi multiplicare peccatum," 

Those who affirm that it is the Church's intention to hold even 
her rebellious children to all her laws appeal to the marriage legis- 
lation of the Church, which legislation Benedict XIV and Pius 
VII affirm to be binding on all baptized persons, because the Church 
has jurisdiction even over heretics and schismatics. But no one 
calls this general principle into question. The question is, Does the 
Church actually intend that every exercise of her jurisdiction should 
affect Catholics and non-Catholics alike? Does she make some laws 
for Catholics only, and others for all baptized Christians? We think 
that there are reasonable grounds for holding that the Church does 
not intend that laws like the law of hearing Mass on Sunday, and 
abstaining from the use of flesh meat on Friday, should be binding 
on baptized non-Catholics. Even from the law of clandestine mar- 
riage, the Church expressly exempted such heretics as had already 
set up a separate religious establishment, when the Tridentine decree 
"Tametsi" was promulgated in their territory. The opinions of 
the earlier post-Reformation theologians on this matter must be 
read in the light of the religious conditions prevailing in the world 
to-day. 

Thus the danger that de Lugo (de Poenit. disp. 15, n. 144) foresaw 
for Catholics, if the opinion exempting baptized non-Catholics from 
the observance of some laws of the Church prevailed, has entirely 
disappeared in our day. He thought that it would be holding out 
an inducement to weak Catholics to leave the Church in order to be 
freed from the obligations of her laws, "per hoc daretur ansa, ut 
multi malitiose se subtraherent a legum obligatione, ponendo se in 



1 64 THE CASUIST. 

tali statu, in quo propter ipsorum perversitatem non crederentur 
observaturi legem et sic non intelligerentur obligari." 

3, It was a mistake to dispense Miss X. from the law of ab- 
stinence by virtue of Apostolic faculties. "In foro externo," Miss 
X. is a heretic, and therefore cut off from the visible communion 
of the Church. The faculties granted by the Holy See may not 
be used in favor of any one outside the body of the Church. 

"Facultates applicari iis tantum possunt, qui per baptismum mem- 
bra Ecclesiae sunt nee earum incapaces redditi per poenam aliquam 
vel censuram, praesertim excommunicationem." Putzer, Com. in 
Facul. Apost. n. 46. 



XXXIX. A MIXED MARRIAGE IN A TOWN WHERE 
THE "TAMETSI" IS IN FORCE. 

Titius, a Protestant young man, and Caja, a Catholic young 
woman, both residents of New York City, joined a party of ex- 
cursionists on a trip to the Yellowstone Park in the summer of 
1903. While in Albuquerque, N. M., they were married by a 
Protestant minister. Some time after their return to New York 
Caja became uneasy about her marriage, and finally laid the matter 
before a priest. As clandestinity is not a diriment impediment to 
marriage in New York, the case was somewhat unusual, and at first 
sight perplexing. On one hand, it might appear that Titius, being 
a Protestant, is not bound by the laws of the Church regarding 
marriage, and therefore, neither is Caja "propter individuitatem 
contractus." Again, the priest recollects that some few years ago 
some new rulings were made by the Holy See in regard to clandes- 
tine marriages in the United States, making them valid in some 
cases where formerly they were doubtful; but just what was the 
import of these rulings he does not recall. On the other hand, he 
argues that all baptized persons are bound by the laws of the Church, 
otherwise a premium would be put on heresy. In this perplexity 
he takes the matter under consideration and comes to the following 
conclusion : 

There are two kinds of Church laws; some Church laws are 
made for the pubHc good, for the promotion of the public welfare 
and the protection of society. These laws are binding on all bap- 
tized persons, whether Catholic or non-Catholic. Of such are the 
marriage laws of the Church, creating diriment impediments to 
marriage, v. g., the laws of consanguinity and affinity. There are 

165 



1 66 THE CASUIST. 

other laws of the Church which aim directly at the sanctification of 
the individual, v. g., the law of hearing Mass on Sunday, of ab- 
staining from flesh meat on Friday, etc., and these laws the Church 
does not wish to bind baptized non-Catholics, for such an intention 
on the part of the Church would only multiply sin.* Now, among 
the former laws, which the Church makes for the good of society, 
and not for the sanctification of the individual, is the law of clan- 
destinity in regard to marriage, and this law, therefore, the Church 
wishes to bind all baptized persons, whether Catholic or non-Cath- 
olic, except in cases where she expressly dispenses from it. That 
baptized non-Catholics are bound by the marriage laws of the 
Church is clearly set forth in the letter of Pope Benedict XIV 
to the Cardinal, Duke of York, February 9, 1749, and has never 
been questioned by any theologian. Only where the Church issues 
a special dispensation from her marriage laws is a marriage of 
baptized persons valid, if the same is forbidden by a law of the 
Church under pain of invalidity. It makes no difference whether 
both parties to the marriage be Catholics, or both non-Catholics, or 
one Catholic and the other Protestant. Now we know that while 
the law of clandestinity does not create a diriment impediment to 
marriage between baptized persons in most parts of the United 
States, still there are some districts where it is in force, and where, 
consequently, the marriage of baptized persons, unless contracted 
before the parish priest and two witnesses, is invalid. What these 
districts are we learn from the Fathers of the third plenary Council 
of Baltimore. In the year 1884 the Bishops of the Council sent to 
Pope Leo XIII a list of both the places in the United States, where 
the decree "Tametsi," of the Council of Trent, was binding, and of 
the places where it had never been published, and therefore was 
never in force. This list has not the force of a law, neither has it 



^See Case xxxviii, page 160. 



A MIXED MARRIAGE WHERE "TAMETSI" IS IN FORCE. 167 

ever received the official endorsement of the Holy See, nevertheless 
it is of paramount authority, since it was compiled with great care 
by the bishops and theologians of the Council. According to this 
list, the decree "Tametsi," of the Council of Trent, making clandes- 
tinity a nullifying impediment to marriage between baptized persons, 
is in force in the following places in the United States : 

I. In the entire province of New Orleans. 2. In the province of 
San Francisco and in the State of Utah, except that part that lies 
east of the Colorado River. 3. In the province of Santa Fe, except 
that part of the State of Colorado that lies north of the Arkansas 
River. 4. In the diocese of Vincennes, Ind. 5. In the city of St. 
Louis, Mo., and in the villages of Ste. Genevieve, St. Ferdinand, and 
St. Charles, in the same State. 6. In the city of East St. Louis, 111., 
as also in the villages of Centerville Station, Prairie du Rocher, 
Cahokia, French Village, and Kaskaskia (which has recently been 
obliterated by the Mississippi River), in the diocese of Belleville, 111., 
now, but formerly in the older diocese of Alton, 111. 

In all other parts of the United States the "Tametsi" decree of 
the Council of Trent has not been published, and therefore clan- 
destinity does not constitute a diriment impediment to marriage 
between baptized persons. 

In all places, therefore, in the United States, where, according 
to the list of the bishops of the third plenary Council of Baltimore, 
the "Tametsi" is in force, the marriages of Catholics are invalid 
unless entered into before the parish priest and two witnesses. In 
all these districts the marriages of baptized non-Catholics would 
likewise be invalid, were it not for the fact that the dispensation 
of Pope Benedict XIV has been applied to them, removing the im- 
pediment of clandestinity in the case of non-Catholic marriages. 
But has the "declaratio Benedictina" been extended, for a cer- 



1 68 THE CASUIST. 

tainty, to all the territory of the United States where the "Tametsi" 
is in force ? According to the Fathers of the third plenary Council 
of Baltimore, the "declaratio Benedictina," declaring valid the mar- 
riages of baptized non-Catholics, contracted in places where the 
"Tametsi" is in force, provided, of course, they be not invalid for 
some other reason, has been extended, for certain, to : i. The Arch- 
diocese of New Orleans, and to the dioceses of Natchitoches, 
Natchez, Little Rock, and Mobile, in the province of New Orleans. 
2. The province of San Francisco and the State of Utah. 3. The 
diocese of Vincennes, Ind. 4. The Archdiocese of St. Louis, Mo. 
5. The diocese of Belleville, 111. 

According to the same Council of Baltimore, the "declaratio Ben- 
edictina" has never been extended to the province of Santa Fe, N. M. 

Whether the "declaratio Benedictina" had ever been extended 
to Texas, i. e., to the dioceses of San Antonio, Galveston, and 
Brownsville, the bishops of the third plenary Council could not 
say for sure, and therefore, to remove the doubt, in the case of 
Texas, and to render the practice uniform for the whole country, 
the bishops of the United States, in 1884, petitioned the Holy See 
to extend the "declaratio Benedictina," not only to the dioceses of 
Texas, m case it had never been extended to them, but also to the 
province of Santa Fe. In reply to this petition of the bishops the 
Holy See, in November, 1885, agreed to extend the "declaratio 
Benedictina" to the dioceses of Texas, but not to the province of 
Santa Fe. Therefore the province of Santa Fe is the only territory, 
in the United States, where clandestinity operates as a nullifying 
impediment in the case of marriages of baptized non-Catholics. 

What is true of clandestine marriages of baptized non-Catholics, 
among themselves, is true also of clandestine mixed marriages. 
(Tanquerey, de Mat. n. 408.) 



A MIXED MARRIAGE WHERE "TAMETSI" IS IN FORCE. 169 

The marriage of Titius and Caja took place at Albuquerque, N. M., 
in the province of Santa Fe. As the "declaratio Benedictina" has 
never been extended to that province, the marriage was subject to 
the law of clandestinity, which rendered ft null and void, because 
it was not contracted "coram parocho et duobus testibus." Had it 
been contracted in any other part of the country, where the "Ta- 
metsi" is in force, it would have been valid, on account of the dis- 
pensation of Benedict XIV. 

This law of clandestinity is both territorial and personal. In as 
far as it is territorial, it affects directly the territory where it has 
been published, and indirectly it affects or binds all those who 
dwell there, as well as those journeying through it, even though 
they have no domicile or quasi-domicile there. Thus, two Catholics 
of the archdiocese of New York, where the "Tametsi" is not in 
force, journeying through the province of New Orleans, where 
the "Tametsi" is in force, and while there, contracting a clandes- 
tine marriage, contract invalidly. Two baptized Protestants, how- 
ever, contracting marriage under the same circumstances, contract 
validly, on account of the "declaratio Benedictina." Their mar- 
riage, however, would be invalid, if contracted in Santa Fe, for 
the papal dispensation removing the impediment of clandestinity 
for them in New Orleans has never been extended to the territory 
of Sante Fe. 

As far as the law of clandestinity is personal, it affects all bap- 
tized persons dwelling in the territory, in this way, that it forbids 
them to leave the territory and to go elsewhere, where the "Tametsi" 
is not in force, in order to get married clandestinely, that is "in 
fraudem legis," in order to cheat the law, without the sincere inten- 
tion of acquiring there a domicile or quasi-domicile. 

In 1886 the Holy See made a special ruling for the United States 



I70 THE CASUIST. 

in regard to the length of time required for acquiring a quasi- 
domicile "in ordine ad matrimonium." The general rule is that, 
in order to acquire a quasi-domicile, "in ordine ad matrimonium," 
a residence "per majorem anni partem" is required. That is, there 
must be a de facto residence and an intention of remaining there 
"per majorem anni partem." But since 1886, in the United States, 
a residence of one month outside of the territory governed by the 
"Tametsi" is all that is required to gain a legal residence in the eyes 
of the Church, for the purpose of marriage (Coll. P. F. n. 1413). 

Therefore, Titius and Caja are not validly married, and besides 
Caja is excommunicated for appearing before a Protestant minister. 
She must first procure a dispensation from the excommunication, 
then a dispensation from the impediment "mixtae religionis," 
and after the non-Catholic party has made the necessary promises 
regarding the faith of the children issuing from the marriage, 
provided there is no other obstacle or impediment, Titius and Caja 
may be united in lawful wedlock. 



XL. A CASE OF RESTITUTION. 

Mr. X was engaged, some years ago, in the wholesale dry goods 
business. The saying that "every business man fails at least once 
in his life," came true of him. He failed for $25,000, with assets 
amounting to about half that sum. His creditors were, first, several 
wholesale houses, to whom he owed $20,000 ; second, a friend, from 
whom he had borrowed $4,000; third, a dressmaker, to whom he 
owed about $1,000 for garments for his family. Mr. X, though a 
Catholic, had neglected the practice of his religion, but was, never- 
theless, in his business dealings an honest man. It was through no 
fault of his that he failed, and he turned over conscientiously to the 
receiver for his estate whatever he possessed in the nature of assets. 
When his affairs were finally settled, it was found that he was able to 
pay fifty cents on the dollar. This he paid and got a discharge from 
the court, under the bankruptcy laws, from all further liability for 
these debts. 

He went to work again, courageously, to retrieve his fortunes. By 
industry and economy, he has succeeded in laying by about $15,000. 
But now his health is broken and he is growing old, and is obliged to 
retire from business for good. He has nothing to depend on for the 
support of himself and his wife and an invalid child but this $15,- 
000. He has made up his mind to return to the practice of the faith, 
and this matter of his earlier failure disturbs him. He was discharged 
by the court from further liability, after paying fifty cents on the 
dollar, at that time, because it was all he had wherewith to pay. Now 
he asks himself, Was that discharge of the court also a discharge in 
conscience? Did it wipe out, before God, his obligation of paying 
the other fifty cents out of his future acquisitions? Or did it only 

171 



172 THE CASUIST. 

discharge his person, and leave his obligation to pay out of his future 
acquisitions in full force ? This is the question that he asks his con- 
fessor to settle for him, as it is now only a question of conscience. 

Solution. Theologians are agreed that a "cessio honorum," 
whether voluntary or ordered by the court, does not, of itself and 
independently of other considerations, relieve a debtor of the obliga- 
tion of making full payment of his debts out of his future acquisitions, 
if he be able to do so. 

Dr. Crolly, sometime professor in Maynooth College, and an 
authority of weight, contends that the intention of the insolvent laws 
of England is to wipe out the debt entirely, and that these laws must 
be considered just and equitable, and applicable in the court of con- 
science. (De just, et jure, vol. iii., n. 1232.) 

But Lehmkuhl takes exception to this contention of Dr. Crolly, 
and maintains that the insolvent laws of England or of any other 
country can not, of themselves, discharge the conscience of the debtor 
from further liability for his debts, unless other conditions are pres- 
ent, from which it may be gathered that the creditors renounce all 
future claims against him. 

And this ooinion of Lehmkuhl is the opinion practically of all the 
theologians. 

A specific case, according to modern theologians, where a "cessio 
bonoriim," followed by a discharge of the court, operates in con- 
science also, and wipes out the obligation of future payment, is the 
case of wholesale and retail merchants, making a bona fide assign- 
ment in favor of their creditors. In this case it is not the discharge 
of the court that wipes out the debtor's liability in conscience, but it 
is the method of doing business prevailing to-day that makes it prob- 
able, if not altogether certain that there existed a tacit contract be- 
tween the retail and wholesale merchant that in case of a bona fide 



A CASE OF RESTITUTION. 173 

failure, the creditor would take the debtor's assets in payment for his 
debts, and renounce all further claims to be paid out of future ac- 
quisitions. 

Father Konings (Theol. Mor. i., n. 861) says that there are 
theologians to-day who think that the opinion of earlier writers on 
this matter must be abandoned, because of the new methods intro- 
duced into commercial transactions. Commerce to-day, they say, is 
conducted almost exclusively on a credit basis. The creditors fore- 
seeing that, among their numerous debtors, there will be some who 
will fail and who will be obliged, in consequence, to settle with them 
for a certain per cent on the dollar, charge a higher price for their 
goods, or a higher rate of interest for their money, in order to secure 
themselves against loss. It is tacitly understood among business 
men that if one of their number makes a bona fide assignment, his 
creditors take what is left and renounce all further claims against 
him. The insolvent laws, discharging the debtor from further lia- 
bility, are equally fair to all, beforehand. The benefit which A reaps 
under them to-day at the expense of B is reaped later on by B at the 
expense of A, or of some one else of their number. To all of this 
Konings replies : "Haec, quanti valeant, et utrum, saltem simul 
sumpta, opinionem illam probabilem efficiant, viderint sapientiores." 

We believe, with Konings and others, that it is not the intention 
of the insolvent laws of the United States, or of any other country, 
to discharge the conscience of the debtor from further liability. 
Although the civil law uses the words "forever discharged from all 
debts and claims," it takes no account of the conscience, and only 
means by these words that the creditors are forever denied any action 
in the future against a legally discharged debtor. 

Judge Kent (Commentaries on Am. Law, vol. I., n. 422) says, in 
regard to the value of insolvent laws: "The 'cessio bonorum' of 



174 THE CASUIST. 

the Roman law, and which prevails at present in most parts of 
the continent of Europe, only exempted the person of the debtor 
from imprisonment. It did not release or discharge the debt, or 
exempt the future acquisitions of the debtor from execution of the 
debt. The English statute of George II, commonly called the lords' 
act, and the more recent English statutes of George III and George 
IV have gone no further than to discharge the debtor's person ; and 
it may be laid down as the law of Germany, France, Holland, Scot- 
land, and England, etc., that insolvent laws are not more extensive 
in their operation than the 'cessio bonorum' of the civil law." 

Again in vol. ii., p. 392, note, he says : 'Tt was stated by the Chief 
Justice in giving the opinion of the Supreme Court of the United 
States, in Sturges vs. Crowninshield, 4, Wheaton, 122, that the 
insolvent laws of most of the States only discharge the person of 
the debtor and leave his obligation to pay out of his future acquisi- 
tions in full force." These laws have been very materially changed, 
of course, since the days of Judge Kent, both in their purpose and 
nature, and are less concerned to-day than ever perhaps about the 
"forum internum," or court of conscience. 

Lehmkuhl's opinion, therefore, seems just and equitable, namely, 
that in a case of "cessio bonorum," the discharge of the court is not 
sufficient of itself to wipe out the conscientious obligation of paying 
the remainder of the debt out of future acquisitions. Other condi- 
tions must be present, from which it may be inferred, with at least 
reasonable probability, that the creditors renounce further claims 
against the debtor. 

The question remaining to be settled, therefore, is this : Are there, 
in reality, present in business transactions circumstances and condi- 
tions from which it may be gathered that business people enter into 
a tacit agreement to accept, in case of a bona fide failure, the assets 



A CASE OF RESTITUTION. 



175 



in full settlement for the debts owed them ? We think they do. We 
have reason to believe that this is the persuasion of conscientious and 
honorable business men, both Catholic and non-Catholic alike. Con- 
scientious and honorable business men, who feel a keen sense of duty 
to pay dollar for dollar for money borrowed or for work done for 
them, feel no such sense of duty to pay, later on, out of their future 
acquisitions, the remainder of their debt to, for instance, wholesale 
houses after a bona fide failure and a discharge in bankruptcy. A 
wholesale house, for example, is fully aware that among its many 
retail patrons, the number of failures, on an average, will reach 
such a figure every year. To secure themselves against this loss, 
among many other measures that they take, is this that they charge 
a higher price for their goods than they would otherwise charge, 
or be justified in charging, were there no bona fide as well as fraud- 
ulent failures. Thus, if A, a retail dealer, fails in business and makes 
an assignment in favor of his creditors, who are the wholesale houses, 
it is in reality A's fellow retail dealers purchasing from the same 
wholesale house who make good the amount that A is unable to pay 
by paying a higher price for their goods, in view of such failures 
as A's. This is true of most lines of business. For instance, insur- 
ance companies protect themselves against loss by fraudulent fires 
by charging a unifomi higher rate for insurance than they would be 
justified in doing were there no fires of incendiary origin. The policy- 
holders all tacitly agree to pay more for insurance in order to pro- 
tect them against loss inflicted by some of their number. 

We do not see, therefore, how Mr. X can be obliged in conscience 
to pay in full out of his future acquisitions the debts he owed the 
wholesale firms. There seems to be a reasonable doubt of his obliga- 
tion to pay. And with such reasonable grounds for doubting whether 
Mr. X is bound in conscience, it would be unreasonable to impose 



176 



THE CASUIST. 



such a burden on him. Of course, as Father Konings remarks, 
"certo certius, ut damnificatores formahter injusti tenentur, qui 
culpa sua gravi in necessitatem illam, cedendi scil, bonis suis, vene- 
runt." 

We suppose that Mr. X has not failed through any grievous fault 
of his own ; and, moreover, that he has done all that he tacitly agreed 
to do, in the event of his bona fide failure, viz., he has turned over 
conscientiously all his assets for the benefits of his creditors. There- 
fore, being certainly discharged in person by the court, he is also 
probably discharged in conscience. 

It is quite different with Mr. X's other two creditors, namely, the 
man from whom he borrowed $4,000 and the dressmaker. With 
these he is obliged in conscience to settle in full out of his future 
earnings. For he had no such understanding with these as he had 
with those. The discharge of the court does not, of itself, discharge 
the conscience. There are no other conditions or circumstances 
present, however, on which a discharge in conscience might be 
argued, even with probability. Therefore, for these two latter debts 
Mr. X must in conscience settle from his future earnings. 

When he has done this his conscience may rest easy. Here again 
we must remark, with Lehmkuhl and Crolly, ''id omnino requiri, 
ut ipse etiam prorsus secundum leges agat, neque minimum quid- 
quam in suum favorem sibi permittat, ultra id quod leges con- 
cedant." 



XLI. INTERPELLATION IN THE CASUS APOSTOLI. 

The Congregation of the Inquisition has given a dispensation 
from the interpellation demanded for the Pauline privilege, in con- 
nection with an interesting case proposed by an American bishop. 
The case is as follows : George, now fifty years old, and living in the 
diocese of the petitioning bishop, married Bertha, both being unbap- 
tized; as a result of this marriage they had four children, who are 
still living. Eight years later Bertha showed many indications of 
insanity, so that it became impossible to live with her, and she was 
committed to an asylum for the insane. 

Six years afterward, as there was no hope of her recovering sanity, 
George obtained a decree from the civil courts adjudging his mar- 
riage null and void from the beginning on the grounds of the 
woman's insanity, which several physicians testified was caused by a 
hurt which she had received when only ten years of age. 

George, still unbaptized, then married Caroline, a baptized non- 
Catholic. He is still living with her ; they have had several children, 
of whom one is living. The insanity of Bertha has gone so far that 
she does not recognize her own daughter, and imagines that she 
herself is Queen Elizabeth. 

Now George (twenty-nine years after his first marriage, with 
Bertha, and fifteen years after his marriage with Caroline) has be- 
come a Catholic, together with his wife and whole family, with one 
exception ; and, therefore, he desires that the Holy See might, by its 
supreme power, grant him deliverance from the bonds of his mar- 
riage contracted in unbelief with Bertha. 

The fact that George was never baptized is clearly proven from the 
testimony of many altogether trustworthy witnesses, who have 

177 



178 THE CASUIST. 

sworn that they often heard his mother say to her brother that 
George was not baptized, and how bad she felt about it. Besides, 
there is no record in the register of his baptism, though records of 
others baptized at the same time are found. 

The non-baptism of Bertha is not of equally absolute certainty, 
though there seems to be a moral certainty that she was never bap- 
tized. Her sister, who is eighteen years older than she, testified 
under oath that she was altogether certain that her sister was never 
baptized, because they did not believe in any religion, and never pro- 
fessed Christianity. 

Therefore, at the utmost there was between George and Bertha 
only a natural marriage contracted in infidelity; or, if Bertha were 
baptized, since George certainly was not, there was no marriage at 
all, on account of Disparitas Culttis. 

Follows the opinion of the Matrimonial Court of the diocese : It is 
decided that this Court has not legitimate jurisdiction to settle this 
case, but recourse must be had to the Holy Apostolic See for a final 
adjudication. But the court is strongly of opinion that the weight 
of testimony is in favor of the validity of the first marriage, on ac- 
count of the absence of baptism in both parties. 

But since George is now baptized a Catholic, he has the right to 
interpellate his first wife Bertha, and since there is no use in doing 
this on account of her insanity, this Court believes that a petition 
should be sent to the Holy See, that it may exercise its supreme 
apostolic power to dissolve the marriage contracted in infidelity be- 
tween George and Bertha, so that George can make regular and valid 
his second marriage with Caroline. Hence the Court asks in their 
behalf the clemency of the Holy See, because they were married 
in good faith, and since their baptism they have lived as brother and 
sister, awaiting the decision of the Holy See, The Defensor Vinculi 



INTERPELLATION IN THE CASUS APOSTOLI. 179 

subscribes to the opinion and petition of the Court. Accordingly, the 
bishop asks his HoHness for a dispensation from the interpellation 
to be made to Bertha, so that George may contract a lawful marriage 
with Caroline. 

The Congregation decided that his Holiness should be asked for 
a dispensation from the interpellation to be made to Bertha, so that 
George might contract matrimony validly with Caroline. This was 
granted December 10, 1903. 



XLII. DE DISPENSATIONE AB IMPEDIMENTO 
MIXTAE RELIGIONIS. 

The following Casus was proposed and solved in Rome, in the 
Apollinaris : 

Bertha, a Roman maiden, was on a pleasure trip through England 
with her father, a widower. After a month spent in visiting various 
parts of the country, she chanced to meet with Titius, a wealthy 
Protestant, resident of the place of their meeting. The latter, con- 
ceiving a strong affection for Bertha, asked her hand in marriage 
of her father, who was willing to grant the request, placing only one 
condition, to which Titius willingly assented, viz. : that he (Titius) 
would take up his abode in Rome, in order that the devoted father 
might not be separated from his only daughter. 

Bertha, however, remembered that there stood in the way of the 
union the impedimentum mixtae religionis; nor did she lack the cour- 
age to speak of it. On the contrary, she promptly went with her 
father and Titius to submit the case to the bishop of the locality, 
who had faculties for dispensing from such an impediment. 

The bishop, being informed that Titius was willing to make the 
promises required by the Church, granted the dispensation and gave 
the necessary authorization to Caius, a priest, a friend of Bertha, to 
marry the couple. Caius, in order to please the latter, performs the 
ceremony in the chapel of a convent of which he is the chaplain ; and 
immediately afterward says the Mass of the day — not the Votive 
Mass pro sponso et sponsa. 

After this Titius wishes to appear before a minister of his own 
denomination and repeat the ceremony. Caius, being consulted by 
Bertha, says that this may be done, extra templum, and provided, 

i8o 



DISPENSATIO AB IMPEDIMENTO MIXTAE RELIGION IS. 18 1 

furthermore, that the minister uses no reHgious vestments or cere- 
monies, quia tunc deest ratio prohihitionis, nempe communicatio cum 
haereticis in divinis. 

Bertha, following the decision of Caius, yields to the desire of 
Titius. 

1. Who can dispense jure proprio from the impediment mixtae 
religionis ? 

2. What about the action and decision of Caius in the case ? 

Ad Primum. — The impedimentum mixtae religionis, which has 
long existed in the Church, is a general lazv. Hence the Pope alone 
can dispense from it jure proprio. Bishops can not, since the follow- 
ing general principle here obtains : "The inferior has no power over 
the law of a superior." This is confirmed by an instruction given by 
the Papal Secretary of State, November 15, 1858, in which it is ex- 
pressly said "ad quam (Apostolicam Sedem) unice spectaf potestas 
dispensandi super hujusmodi impedimento mixtae religionis." 

While the bishop ex jure communi has the faculty — quasi-ordi- 
naria — of dispensing in the case of some other non-diriment impedi- 
ments, he does not enjoy that faculty in the case of the impediment 
here in question. Pius VII, in a Brief dated February 17, 1809, and 
addressed to the bishops of France, says that up to that time the 
Holy See had always refused to grant this faculty to bishops, es- 
pecially in Europe, though it had been asked for with the greatest 
importunity. Now, however, by special indult, but still with some 
reluctance, this faculty is granted, especially for those places where 
there are many heretical sects, and particularly for sparsely settled 
districts, either for a definite time, or for a determined number of 
cases, by the Congregation of the Holy Office or of the Propagation 
of the Faith. 

With regard to Caius, the priest who performed the ceremony in 



i82 THE CASUIST. 

the chapel of the convent of which he was chaplain, it can be said 
that his action was allowable, since it was not in a country where, 
as for instance, in Belgium, a more rigid discipline is enforced. 
From the context it also appears that he used for the ceremony the 
rite prescribed in the diocesan ritual. Neither can he be blamed for 
so doing, if we suppose that the bishop had approved for the diocese, 
or at least tolerated, that form of ceremony for mixed marriages 
generally. (According to the above-mentioned instruction of 1858.) 
But the celebration of Mass, even though it was not the votive pro 
sponso et sponsa, but the one of the day, can in no way be justified 
if, as seems probable, it could really in the circumstances be con- 
sidered as forming a part of the nuptial ceremony. If, however, it 
could not, and was celebrated after the ceremony merely to satisfy 
the devotion of the bride, it was allowable, especially as it took place 
in a private chapel. This would be the case if, for instance, the Mass 
at which the married couple assisted was the ordinary Mass cele- 
brated at that hour every day in the convent, and the chaplain had 
simply made arrangements so that on this occasion it was preceded 
by the marriage ceremony. In such a case the Mass could not be 
said to have been celebrated for the married couple — rather they 
were obliged to arrange matters so as to assist thereat, possibly with 
no slight inconvenience to themselves. Finally Caius, asked by 
Bertha if she might, in deference to the wishes of her husband, go 
with him to have the ceremony performed by a Protestant minister, 
replied that she might do so, provided it be not in a church and that 
no religious rites or vestments be used, "for," he added, "in that 
case the motive of the prohibition will be wanting, viz., communica- 
tio in divinis cum haereticis." 

As to this point, it must be granted that some serious theologians 
and canonists take the same view as Caius, and for the same reason. 



DISPENSATIO AB IMPEDIMENTO MIXTAE RELIGION IS. 183 

Gasparri (de Matr. Vol. I. n. 467) gives that solution to the case 
exposed above. Supposing, for instance, that the minister in lay 
clothing, and not in a church, were to wish happiness, etc., to the 
married couple, recalling the rights and duties of the state of life 
upon which they had entered, without pretending to add thereby 
anything sacred to the marriage already performed, and supposing, 
of course, that the Catholic party does not look upon this as in any 
way a completion of the same, but simply as an act of complaisance 
toward the non-Catholic, whether the latter looked upon it as a 
sacred ceremony or not (Vechiotti III. Sec. 98). 

It is true, that it is not here question of a mere civil assistance, 
for the contracting parties go before a heterodox minister ad sacra 
deputatus, but, on the other hand, it is also true that no heretical 
religious ceremony is performed, and consequently no real com- 
municatio in divinis. However, care should be taken to avoid scandal, 
and this could be secured if the faithful were instructed as to the 
real motive and significance of the action of the couple in the cir- 
cumstances. 

Other theologians (v. g. Genicot II. n. 520) think that such an 
act could hardly be free from the appearance of at least an external 
adhesion to a heretical sect, and could not be allowed, since there 
would be an implied recognition of some religious authority in a 
non-Catholic minister. 

To me it seems that perchance the solution might depend upon 
the circumstances prevalent in various countries and places, in par- 
ticular upon the manner in which, according to received custom, 
such a procedure would be considered. 



XLIII. SUDDEN SICK CALLS. 

Titus is hurriedly called to the bedside of a dying man, who desires 
very earnestly to see him. Taking the Blessed Sacrament and the 
holy oils, he hastens to the house of the sick man, only to learn that 
just as he crossed the threshold of the house the dying man had 
passed away. Having the Blessed Sacrament with him, Titus did 
not tarry longer, but returned immediately to the church. 

On another occasion, being summoned to a sick person, Titus, on 
entering the sick chamber, finds the patient just breathing his last. 
He quickly pronounces the words of absolution over him. But 
before he can administer Extreme Unction the pulse and heart have 
ceased to beat, and Titus, concluding that the man was dead, re- 
turned home without administering Extreme Unction. 

Reflecting on these cases, Titus makes up his mind that in the 
future, whenever he receives a sudden sick call, he will pronounce 
the words of absolution over the sick person when within twenty 
paces of the house, in order to be able to proceed to the administra- 
tion of Extreme Unction immediately on entering the sick chamber. 

Answer. — It is hardly necessary to say that a person who is cer- 
tainly dead can not receive any Sacrament, neither sacramental abso- 
lution, nor Extreme Unction. To absolve or anoint a person who, 
beyond doubt, is dead would be a sacrilege. It would be a grievous 
desecration of the Sacramental rite and a mortal sin. But if there 
be any reasonable grounds for doubting whether the person be really 
dead or not, then the priest not only may, but must administer, con- 
ditionally, of course, Sacramental Absolution and Extreme Unction. 
That a person is, in every case, really dead when he ceases to breathe 
is by no means certain according to expert medical testimony.* In 

*Cf. the chapter 'The Moment of Death," in Sanford's Pastoral Medicine. 

184 



SUDDEN SICK CALLS. 185 

the case of normal death, where the person has been sick for some 
time and gradually sinking, only a few moments, at most, will inter- 
vene between the cessation of respiration and actual death. But in 
cases of sudden and violent death, as, for instance, drowning, as- 
phyxiation, etc., the last visible sign of life may have disappeared 
long before death occurs. 

Dr. Gourand, a well-known Parisian physician, with large hospital 
experience, writing in the "Bulletin de la societe medicale de S. Luc, 
S. Come, S. Damian," 1895, says, apropos of the question of admin- 
istering the last Sacraments, that it is physiologically wrong to con- 
clude that actual death has occurred because respiration has ceased. 
It used to be thought, he says, that when the breathing had ceased 
the heart action also had ceased, and, therefore, that death had 
occurred. It is comparatively easy to verify the cessation of breath- 
ing, but difficult to determine just when the heart has finally ceased 
to act. "It is incontestable," he continues, "that a person who, after 
a long agony, ceases to breathe is, in most cases, dead. But, physi- 
ologically, he is not dead because respiration has ceased, but because 
the cessation of breathing follows, as a consequence, upon the cessa- 
tion of the action of the heart." In regard to cases where respiration 
has ceased before the action of the heart has been stilled, he says : 
"Between the last breath and the final cessation of the heart's action 
there is often an interval, whose length is determined by the greater 
or lesser vitality of the cardiac ganglion." 

Dr. Capellmann (Pastoral Medicine, Agony) says: "After the 
last respiration the person is considered dead, although perhaps 
sometimes minutes elapse before the vital spark becomes completely 
extinct, the muscles of the heart and of the arteries make, often 
after the last respiration, some, though feeble, movements. If the 
agony and the gradual fading away have been observed, we may be 



1 86 THE CASUIST. 

convinced of death some minutes after the last respiration. How- 
ever, there are some forms of death wherein doubts may be enter- 
tained whether death has really taken place." In other cases, as for 
example, cases of drowning, asphyxiation, great loss of blood, etc., 
hours may elapse between apparent and real death, or between ap- 
parent death and resuscitation. 

Father Tanquerey, de Poenit, p, 247, says : "Ex recentibus experi- 
mentis constat vitam per aliquod tempus in corpore manere, etiam 
quando quis ultimum suspirium edere visus est, quia vita non nisi 
successive a corpore recedit. Hinc quandoque qui apparenter mortui 
erant, post tres horas rhythmico linguae tractu, ad vitam reducti 
sunt. Quapropter absolvi et inungi possunt, positis ponendis, ii qui 
tali processu, quaedam signa vitae, saltem sensitivae, praebent; imo 
sub conditione 'si tu es vivus' ii qui quamvis mortui esse videantur, 
juxta ordinaria signa, prudenter a peritis supervivere putantur." 

In the light of all this, therefore, we can not endorse uncondition- 
ally Titus' method of administering the last Sacraments. 

As regards the first case, although the sick person was dying for 
some time and gradually faded away, and although the attendants 
had noticed the cessation of respiration, nevertheless Titus could 
not affirm with certainty that life did not linger still in the heart and 
nerve centers, for at least the few moments that were required to 
reach the sick-chamber from the main entrance of the house. On 
entering the sick-room, therefore, Titus should have immediately 
pronounced the words of absolution, with the condition "si tu es 
capax." As regards the administration of Extreme Unction in this 
case, so much time would be required before the Sacrament could 
be given that there would scarcely be any reasonable grounds for 
not concluding that death had occurred before the Sacrament could 
be administered. 



SUDDEN SICK CALLS. 187 

Were this a case of sudden or violent death, like drowning or 
asphyxiation, etc., Titus should have administered Extreme Unction 
also, because there was a reasonable probability that life might not 
be altogether extinct. 

In case a physician were present and would not affirm with cer- 
tainty that death had already occurred, Titus would be justified and 
even bound to administer Extreme Unction. And if considerable 
time were required to discover probable signs of life or death, Titus 
should proceed immediately to administer Extreme Unction, using 
the shortest valid form, without waiting for any further examination 
of the patient, because every moment of delay may prove fatal. 

In the second case, Titus did well to give conditional absolution. 
Had he had the holy oils ready, he could have given Extreme Unction 
immediately after pronouncing the words of absolution, because there 
was sufficient reason for doubting whether life really became extinct 
with the last respiration. At least there was a probability that a 
spark of life might still remain in the body, and therefore sufficient 
warrant for giving conditional Extreme Unction, although there 
would be no sufficient warrant under the circumstances for admin- 
istering the Holy Viaticum. 

The resolution that Titus took in consequence of these cases, of 
always imparting conditional absolution when within twenty paces 
of the house of the sick person, can not be approved of; rather, it 
must be condemned. In order to be absolved, the penitent must be 
morally present to the confessor; and although St. Alphonsus says 
that if the penitent be no farther than twenty paces distant from the 
confessor he is morally present and may be absolved, the holy doctor 
means that both the confessor and the penitent must be in the same 
room or hall, and must perceive one another by sight or hearing. 
Even a greater distance than twenty paces would not render the 



1 88 THE CASUIST. 

absolution certainly invalid, although it would jeopardize it. But 
if the priest be separated from the penitent by a house or a street, or 
if the penitent occupy a room in the house altogether unknown to the 
priest, there can be no question of moral presence. In fact, even 
under circumstances where the absolution "in distantiam" would be 
most likely valid, the confessor would not be justified in adminis- 
tering it always and on all occasions in that way, but only in cases 
where, unless he administered it in that way, he would not be able 
perhaps to administer it at all. It is not to be taken for granted that 
every time the priest receives a sudden urgent sick call it will be 
necessary to give conditional absolution before reaching the bedside 
of the dying person. On the contrary, it is to be taken for granted, 
as a rule, that the priest will be summoned in ample time to ad- 
minister the last Sacraments to the dying with dignity and decorum. 
The faithful are to be reminded repeatedly, when necessary, that 
they should summon the priest in good time. And the priest, on 
being called to the sick, should not delay in hastening to them. 
Exceptional accidental cases must be left to the providence of God. 



XLIV. CONFESSION OF A DYING PERSON. 

Titia, who is thought to be near death, but nevertheless is quite 
sanae mentis, although of very weak memory, is not able to remem- 
ber any sin, while trying to make her Confession to Cajus, her con- 
fessor. To all questions put to her by her confessor, in his endeavor 
to discover materia absolutionis, she answers : "I can not recollect 
any sin, not even from my past life." But she desires very much 
to be absolved, and to receive the Holy Viaticum and Extreme Unc- 
tion. As there would evidently be danger in delay, Cajus accedes to 
her wishes, and absolves her, afterward giving her Holy Communion 
and anointing her. 

Quaeritur. — Did Cajus do right? Or should he have absolved 
her on the explicit condition, "Si peccata commisisti ?" 

Solution. — I. Principles. — Material integrity is not always re- 
quired for a good Confession. Formal integrity is always required ; 
that is, as complete a Confession of mortal sins as is morally possible 
for the penitent at the moment of Confession. Very often this for- 
mal integrity is the only integrity possible, and therefore the only 
integrity required for a good and sufficient Confession. The Coun- 
cil of Trent, in the 5th chapter of the 14th session, speaks of the 
integrity required for a good Confession, and meets the objection 
of the Reformers that Confession as required by the Church is an 
impossible thing. Following are the words of the Council : "Con- 
stat enim, nihil aliud in ecclesia a poenitentibus exigi quam ut post- 
quam quisque diligentius se excusserit et conscientiae suae sinus 
omnes et latebras exploraverit, ea peccata confiteatur, quibus se 
Dominum et Deum suum mortaliter offendisse meminerit. Reliqua 
autem peccata, quae diligenter cogitanti non occurrunt, in univer- 

189 



T90 



THE CASUIST. 



sum eadem confessione inclusa esse intelliguntur, pro quibus fideliter 
cum propheta dicimis: Ab occultis meis munda me." The reason 
of this, of course, hes in the fact that Almighty God does not re- 
quire anything impossible of us. The Confession is formaliter In- 
tegra, when the penitent is honestly minded to confess all mortal sins, 
according to their number and their kind and the circumstances that 
change their nature, and does his best to make as full a Confession 
as he can, although for some reason, beyond his control, v. g., ohlivio 
inculpahilis, he does not make a materialiter Integra confession. Only, 
it is required of him that when the obstacle to a materially complete 
Confession is removed, he must make his Confession materialiter In- 
tegra. Pope Alexander VII., September 24, 1665, condemned the 
following proposition: "Peccata in confessione omissa seu oblita ob 
instans periculum vitae aut ob aliam causam, non tenemur in sequenti 
confessione exprimere." 

Further it must be remarked that no difficulty intrinsic to Con- 
fession, inherent in its very nature, as for instance, the shame or 
confusion experienced in confessing our sins, is ever a sufficient 
reason for making a materially incomplete Confession. For since 
our blessed Lord has ordained that we must confess all mortal sins 
to his lawfully ordained representatives on earth, therefore he has 
also ordained that we must take upon ourselves whatever hard- 
ships are inseparable from such Confession, which hardships may 
serve as a penance for sin, and are very wholesome and salutary for 
the penitent. Thus the shame and confusion that a penitent may 
feel while confessing his sins, or the hardships that we are known 
personally to the confessor and that there may be a falling off in 
his esteem for us, would be no excuse for making an incomplete Con- 
fession. For were such reasons sufficient to justify an incomplete 
Confession, then the faithful would easily persuade themselves that 



CONFESSION OF A DYING PERSON. 191 

they were justified in making an incomplete Confession, and this di- 
vine ordinance would fail, to a large degree, of its purpose, or, as 
Gury expresses it : "Ratio est quia confessio ex natura sua est essen- 
tialiter laboriosa ac proinde si difficultas gravis, v. g., magna repug- 
nantia aut verecundia, ab integritate excusaret, plerumque ab accu- 
sandis mortalibus excusarentur fideles et proinde rueret ex maxima 
parte institutio sacramenti Poenitentiae. Praeteria Ecclesia non 
posset reservare crimina atrocia, quia id incommodum non leve poen- 
itentibus creat" (II. n. 497). Neither would the great number of 
penitents excuse one from the material integrity required in the Con- 
fession, "concursus magnus poenitentium non excusat," v. g., on 
a great feast day, or the occasion of a plenary indulgence during a 
jubilee. Pope Innocent XI, on March 2, 1679, condemned the 
following proposition : "Licet sacramentaliter absolvere dimidiate 
tantum confesses ratione magni concursus poenitentium, qualis, v. g., 
potest contingere in die magnae alicujus festivitatis aut indulgen- 
tiae." That confessor would be guilty of sacrilegious conduct, in- 
deed, who, on the occasion of a great crowd of penitents, would dis- 
pense them from the obligation of making a materialiter Integra 
Confession, and would grant absolution after the Confession of one 
or another mortal sin. Any handbook of moral theology may be 
consulted on this matter. 

II. Application of Principles. — In the case, as stated above, Titia 
is conscious, in a general way, that she is guilty of sin, and in this 
conviction she accuses herself, giving evidence of a contrite heart, 
and praying to be absolved. That she confesses no sin in particular 
arises from the fact that her memory is weak, and perhaps also 
from want of sufficient religious instruction, but it has not its reason 
in any false shame or sinful negligence. For it not seldom happens 
that many are so uninstructed, and of such poor intellectual parts. 



192 THE CASUIST. 

thatj although they know in a general way that they have sinned, 
and express true sorrow for their sins, they nevertheless are unable to 
recall any sin in particular. This class of penitents is not to be 
confounded with another class, namely, those penitents that imagine 
they have no sins, because they are blinded by self-conceit. We 
argue, therefore, that in the present case, Titia has made a formal- 
iter Integra Confession, in as far as she gives evidence of true con- 
trition for her sins, and by praying to be absolved makes a Con- 
fession of her sins in as far as it is possible for her under the present 
circumstances. "Ad impossibile nemo tenetur" must be applied in 
this case. She does the best she can, considering her condition, 
and that is all that is required of her. 

Tappehorn, in his able work on the Sacrament of Penance, says : 
"If the particular sin can not be remembered or confessed, it will 
suffice to indicate its species ; if this is impossible, it is sufficient to 
confess that one has sinned mortally, although one can not remember 
or confess in what particular way." The confessor, therefore, ought 
to absolve Titia unconditionally. "Absolvi potest et debet, et quidem 
absolute, quilibet moribundus, qui aliquo modo, voce vel signo, con- 
fitetur vel absolutionem petit. Ratio est quia adsunt omnia requisita 
ad Sacramentum et ad confessionem formaliter integram." (Gury, 
II, n. 505; St. Lig. n. 408.) 

The expressed wish to be absolved contains in itself a Confession 
that one has sinned. If now the confessor, in imparting absolution, 
adds the condition, "si peccata commisisti," then he sets at naught 
the penitent's Confession, and in this he is not justified. 



XLV. MARKS OF FRIENDSHIP TOWARD AN ENEMY. 

John Smith, a wealthy and prominent CathoHc, accuses himself 
in Confession of being on very bad terms with one of his children. 
It appears that one of Mr. Smith's sons, a young man of rather 
unsteady habits, married, over a year ago, a vaudeville actress, a 
non-Catholic, and from all accounts a young woman of Bohemian 
antecedents and proclivities. As Mr. Smith and his whole family 
were very much opposed to this marriage, and did all in their power 
to stop it, but to no purpose, they feel very much grieved by it, and 
refuse to have anything to do with the young man or his wife. Mr. 
Smith has cut the young man off in his will, has forbidden him his 
house, recently refused to allow him to be present at the parents' 
golden wedding, although all the other relatives were present; re- 
fuses to recognize the young man either in public or in private, to 
return his salutations or to permit any advances to be made toward 
a reconciliation, eitlier by the young man himself, or by his friends. 

Quaeritur: Is Mr. Smith's conduct justifiable before God, or is it 
sinful ? 

Principles: This case comes under the heading "de amore inimi- 
corum." The law of charity imposes a twofold obligation on us in 
regard to our enemy. First, we must not wish him evil ; second, we 
must wish him well. 

First: We must not wish our enemy evil; that is, we must not 
repay evil with evil, nor cherish a spirit of revenge toward him. 
We must pardon the personal offense when requested, not always 
immediately. Sometimes there may be just cause for deferring 
pardon in order to manifest the pain we suffer by reason of the 
offense. Sometimes, even, we may be obliged to make the first ad- 

193 



194 



THE CASUIST. 



vance toward a reconciliation, to prevent scandal or to save our 
enemy from sin, when we can do so without much trouble to our- 
selves. 

Second : We must wish our enemy well ; that is, we must include 
him in our prayers. We must succor him in his needs, as we would 
any one else. And if we exercise charity indiscriminately toward 
a large number, we must not exclude our enemy, for this would be 
a mark of revenge ; and if special ties of blood, etc., unite us, we are 
bound to give such evidence of good will toward our enemy as 
we give to others who are bound to us by the same ties. But special 
marks of friendship that we owe to no one in particular, either by 
reason of their personal condition or the customs of the country, we 
are not obliged to show to our enemy. 

Here we must remark that it is one thing to harbor a spirit of 
revenge, and quite another thing to desire the reparation of outraged 
rights. It is perfectly legitimate to desire the restoration of our 
good name, or the restitution of our stolen property, and to take 
action at law to obtain them; yes, even to take criminal proceed- 
ings against the offender to have him punished. If this is done out 
of love for justice, it is quite in keeping with the law of charity. 
If it is done from a spirit of revenge, it is, of course, sinful. Once 
satisfaction has been made, we must forgive the personal offense. 
Until satisfaction has been made, this is not required of us. 

Regarding the question of saluting those who have grievously 
offended us, the doctrine of St. Ligouri, Tamburini, Mazotta, and 
others may be summed up as follows : We are not obliged to salute 
those who have wrongly offended us, unless they make the first ad- 
vances, unless it be question of a superior, or unless to refrain 
from saluting our enemy for a long time could be interpreted as a 
mark of hatred. But if our enemy greets us first, we are bound to 



MARKS OF FRIENDSHIP TOWARD AN ENEMY. 



195 



greet him in return, except once or again we might be justified in 
refusing to recognize a greeting in order to show our feelings 
have been hurt. In a word, the omission of the ordinary greetings 
and marks of good will that pass among men must be taken, some- 
times on account of circumstances, not as a sign of hatred or re- 
venge, but as a "manifestatio justi moeroris tantum." If, therefore, 
on account of the circumstances, the denial for a time of the ordinary 
salutations and greetings must be interpreted as a manifestation of 
wounded feelings, and if in fact the denial proceeds from no spirit 
of hatred or ill will, such denial is not sinful. If, however, under 
the circumstances, the denial of the ordinary marks of good will 
must be interpreted as a sign of hatred or revenge, ''pro manifesta- 
tione vindictae et inimicitiae," then such denial is sinful, even though 
it do not arise from feelings of hatred or revenge. 

Application of principles : Mr. Smith's son had become his enemy. 
He had given his father just cause for feeling hurt and outraged. 
He had done his father and his family a grievous wrong. Although 
an enemy, we must not forget the special ties of blood that unite 
them. Was Mr. Smith's conduct toward his son justified in every 
instance ? We must take each separate count by itself. 

First, Mr. Smith cuts ofif his son in his will. Is this act "contra 
justitiam," or only "contra charitatem," or wholly blameless? 
Whether this cutting ofif of children by parents in their wills be con- 
trary to the virtue of strict justice does not appear. Some theo- 
logians think it is ; others that it is not. Fr. Genicot thinks that it is 
not. Fr. Lehmkuhl thinks that it is. Genicot says : "Nee putaverim 
graviter peccaturum parentum qui, absque justa causa, uni filio prae 
aliis faveret, ut opinatur Lehmk." (I. n. 677). 

"Si quis ex odio vellet solam legitimam (portionem) filiis relin- 
quere, vel fratres non indigentes omino praeterire, is sub gravi 



196 THE CASUIST. 

obligandus esset ut hoc odium deponeret, hortandus tantum ut illis 
aliquid amplius relinqueret; nam utitur jure suo" (ibid.). 

Lehmkuhl thinks that where there is no "clara et justa causa," 
parents sin against justice in preferring some children to others 
(Ln. 1155). 

De Lugo thinks that it is not against justice : "Quare moribundum 
fratribus nolentem ahquid relinquere vel fihis non nisi legitimam, 
cogere debet confessarius, ad deponendum odium, si forte ex odio 
vel vindicta moveatur, hortari etiam, ut eis consulat ; non tamen ideo 
negare debet absolutionem nolenti, si non sit talis gradus necessi- 
tatis, in quo debeat personis adeo sibi conjunctis subvenire" (disp. 
24. n. 175). 

Mr. Smith's action, therefore, in cutting ofif his son, is not evi- 
dently against justice. Is it against charity? If it is prompted by 
hatred or revenge, it is and grievously so. If it is not prompted by 
hatred, but by the fear that the son may abuse his inheritance, it is 
not. The laws of this country leave the father free in bequeathing 
his goods to his children. In this case the evidence favors the father. 
The son's past history promises peorly for the future. The son 
will, in all likelihood, be the better for being disinherited. The 
father's act, therefore, can hardly be interpreted as evidently against 
charity. Still it were much wiser if the father made some provision 
for his son, an annual allowance that could not be abused. In regard 
to forbidding the young man his house, we must distinguish. If the 
young man has reformed or is trying to reform, Mr. Smith may for- 
bid him his house for a time, to give expression to his outraged feel- 
ings. But a year is certainly a safe limit. The young man has a 
home of his own now, and no longer the same claim on his father's 
house. Still, to continue to refuse him admission savors of hatred 
and revenge, and the father must desist under pain of being denied 



MARKS OF FRIENDSHIP TOWARD AN ENEMY. 197 

absolution. As long as the son refuses to reform, the father is not 
obliged to receive him. 

That Mr. Smith refused to invite the son to his golden wedding 
may have been simply a measure of prudence. The son's presence 
would very likely have caused trouble, recriminations, and perhaps 
a general scandal ; certainly if his wife were to attend. 

If, however, the young man and his wife had both turned over a 
new leaf, this would have been an excellent occasion for bringing 
about a good understanding, and unless serious difficulties were 
apprehended, Mr. Smith could hardly have refused them an invita- 
tion without committing sin. 

The same is to be said about Mr. Smith's refusal to recognize his 
son in public or in private. If the son continues in an evil course, 
Mr. Smith may continue to give expression to his sorrow by refus- 
ing to recognize him. If the son has reformed, Mr. Smith is obliged 
in conscience to recognize him. He may refrain for a time, say for 
a few months, from recognizing the son, but to continue to do so 
must be interpreted in the light of hatred or revenge. And his con- 
tinued refusal to return his son's greetings or to open the way for a 
reconciliation renders Mr. Smith unworthy of absolution. It seems 
evident from the case that Mr. Smith is of a stern character, and 
no more should be required of him than is absolutely necessary. But 
what is required by the law of God should be insisted on with 
great firmness, because a man of this character easily deceives him- 
self by believing his conduct to be prompted by a love of righteous- 
ness and justice, whereas it is prompted by a spirit of animosity and 
revenge. 



XLVI. THE OBLIGATION OF RESTITUTION, ARIS- 
ING FROM CONCEALING THE REAL VALUE 
OF AN OBJECT AND THEREBY DEPRE- 
CIATING ITS PRICE. 

Mr. A, is a dealer in works of art and antiques. Once a year, or 
oftener, he makes a business trip to Europe, to purchase a new supply 
of goods. He is an expert in the business, and knows to a nicety 
what an article of this kind is worth, and what price it will bring in 
the American market. Now, it often happens that Mr. A., in order 
to purchase some article at a bargain, conceals its true value from 
the owner, often insisting that it has very little or no value, and thus 
succeeds in purchasing for a trifle, pieces that he knows are worth 
a great deal, and which he afterward disposes of for many times the 
price he paid for them. In this way he is making considerable 
money, but sometimes has misgivings about his methods of making 
it. What judgment, from the view-point of good morals, are we 
to form of Mr. A.'s business methods? 

Mr. A. is certainly bound to restitution, provided his conduct in 
the purchase of goods is really deceiving and unjust. Whether his 
conduct is really such in each and every instance, will appear from 
the following considerations, as also the extent of his obligation to 
make restitution. 

I. Mr. A. conceals from the owner of the piece of furniture or art 
its true value, which it possesses by reason of its age or workman- 
ship, etc. He simply remains silent about it. He is careful to drop 
no remark that might arouse suspicions in the owner as to its real 
worth. Now we ask, Is Mr. A. bound in conscience, in every in- 
stance, to enlighten the owner of a work of art as to its real value ? 
Fr. Lehmkuhl (I. 1120) has this to say on the subject: "Pretium 



CONCEALING THE REAL VALUE OF AN OBJECT. 199 

conventionale . . . admitti potest in rebus quae apud vetera- 
mentarios existunt, modo ne dolose et f raudulenter procedatur : quare 
si inter res viles detegitur res pretiosa, videndum est, utrum singu- 
laris sit notitia emptoris, an communiter qui viderint illam rem, earn 
pro pretiosa habeant, adeoque potius singularis sit venditoris aut 
paucorum imperitorum inscitia. Si posterius obtinet, vilissimum 
pretium non censetur justum ; si prius, non injustum censetur. Quare 
facile admittitur, ut vetustos libros, etsi detegam, eos esse magni 
valoris, si modo doloso non agam, viliore pretio mihi comparare 
possim," That is to say, if the purchaser's knowledge, in this par- 
ticular business, is altogether exceptional, he may profit by it. If the 
purchaser's knowledge is not exceptional, but the ignorance of the 
owner of the work of art, etc., is quite unusual, then the purchaser 
may not profit by his knowledge, because what he profits by, then, 
is in reality not his own knowledge, but his neighbor's exceptional 
ignorance. 

This is also the view of Fr. Noldin, S.J., professor of moral 
theology in the University of Innsbruck. Dealing with the same case, 
which we give above, he says: "Si unus contrahentium verum rei 
valorem cognoscit, alter ignorat, ita distinguendum est; venditio 
injusta est, si verus rei valor facile ab omnibus peritis cognoscitur ; 
venditio autem justa est, quando verus rei valor solum ab emptore 
ob singularem ejus peritiam detegitur." And he gives the reason as 
follows : "Ratio primi est, quia pretium vulgare, quod communiter 
a peritis determinatur, majus est. Ratio secundi est, quia res com- 
muniter non pluris aestimatur" (The. Mor, II., n. 589). 

If Mr. A., therefore, ob singularem ejus peritiam, being an ex- 
pert, alone knows the value of the object, and he leaves the owner 
of it in ignorance of its real value, and thus succeeds in buying it 
for little or nothing, only to sell it later on for a very handsome 



200 THE CASUIST. 

price, he does not commit any injustice against the owner. Because, 
under these circumstances, the object has little or no value for the 
owner, since the value put upon it by those versed in such matters 
is very small. Mr. A. is not responsible for the ignorance of the 
owner. He did not deceive the owner into offering the object for a 
very small price, and can not be considered, therefore, the causa 
efficax of the lucrum cessans, which the owner might have enjoyed 
if he had known the article's true value. Therefore, Mr. A. is not 
bound to restitution for this part of his conduct. 

2. But how stands the case with regard to the rest of Mr. A.'s 
business methods? Mr. A. not only conceals the true value of the 
goods he intends purchasing, by observing a profound silence, but 
he positively contributes to lead the owner into error, in order to 
profit by it. Can we also, in this case, maintain that Mr. A.'s conduct 
is not a causa efficax damni, and, therefore, does not create an obliga- 
tion to restore ? Even here we can excuse Mr. A. from the obligation 
of restitution if what he did amounts to nothing more than an effort, 
common to all barter, to purchase goods as cheaply as possible. That 
is called a trick of trade, and in itself does not constitute an act of 
injustice, even though a less experienced seller might sometimes be 
induced by it to sell an article cheaper that he would otherwise have 
sold it, provided the price paid may still be considered a justum 
pretium. 

St. Alphonsus says : "Hinc etiam advertendum, quod communiter 
non praestatur fides mendaciis vendentium, dum satis noscuntur, 
haec esse communia stratagemata ; unde ipsi regulariter non tenentur, 
ob id ad restitutionem, ut Salm. etc. Dixi : regulariter, quia si 
aliquando venditor certe animadverteret emptorem mendaciis credere 
et ideo ma j oris emere, tunc quidem ab injustitia is non est excu- 
sandus" (Theol. Mor. iv., n. 805). 



CONCEALING THE REAL VALUE OF AN OBJECT. 201 

What the Holy Doctor says here of the seller who by false exag- 
gerations endeavors to deceive the purchaser, and thus receive a 
higher price for his goods, we may apply to the case of the pur- 
chaser who, by false representations, induces the owner of a work of 
art, for instance, to part with it at a price far below the lowest pre- 
timn justum. In this case Mr. A. can scarcely be excused from the 
obligation of making restitution. By false and unjust representa- 
tions, he procures an article at a price far below any actual value it 
possesses. His profit can not be ascribed, in this case, to any excep- 
tional knowledge he possesses, but only to his mendacious representa- 
tions. He is, in fact, positively cheating his neighbor. "Ratio est, 
quia emptor (ut jam per se patet) non minus tenetur servare justi- 
tiam commutativam in contractu, quam venditor; ergo sicut vendi- 
tor non potest, salva conscientia, plus acceptare, quam justum pre- 
tium exigit, ita emptor non potest minus dare, quam limites justi 
pretii exigunt" (Elbel. vi., n. 179). 



XLVII. RESTITUTION TO A RAILROAD COMPANY. 

Titius, a traveling salesman, is more or less intimately acquainted 
with a number of conductors on the several railroads over which he 
travels on his business trips. Now, whenever he rides with one of 
these conductors, he does not pay the usual fare for the distance 
he travels, but instead he hands the conductor a dollar bill, which 
is much less than the fare, for which the conductor gives him no 
receipt, in order not to be obliged to turn it in to the company, but 
to keep it for himself. In this way Titius has defrauded the several 
railroads in the last few years, to the extent of several hundreds of 
dollars. 

Now, it is asked : 

1. What constitutes materia gravis, when stealing from a cor- 
poration ? 

2. When do small thefts coalesce, and create a grave obligation 
to restore ? 

3. Did Titius commit a mortal sin from the start, or only after he 
had, de facto, taken a considerable sum? 

4. Was he also responsible for what the conductors stole? 

I. The good of society at large, as well as the good of the indi- 
vidual, require that the members of society shall enjoy complete 
security in the possession of their earthly goods. Unless peace and 
concord reign among the individual members of a state, civilized life 
would become impossible. But the peace and concord required to 
make life tolerable would be impossible were the individual mem- 
bers of society free to steal from one another. And all human society 
would fail of its purpose were property rights not inviolable, be- 
cause the greatest if not the only inducement held out by society to 



RESTITUTION TO A RAILROAD COMPANY. 203 

its members to promote industry and to encourage sustained labor 
and effort is precisely the security that the state guarantees to its 
citizens in the possession of the fruits of their labor. 

The stealing, therefore, from a private individual of a sum suffi- 
cient to jeopardize the peace and concord that should reign among 
private members of society in the possession of their property, and 
which would therefore cause grievous injury to the individual, will 
constitute a materia gravis, and be forbidden under pain of mortal 
sin. 

Now, although the amount stolen from very rich persons and 
from great corporations may not do the said persons or corporations 
a grave damage, and therefore might seem to be a venial sin only, 
nevertheless the security of property, which must necessarily obtain 
in every civilized state, requires that the stealing of a considerable 
sum, even from a corporation, shall constitute a grave transgres- 
sion. For if the stealing of a considerable sum from very rich per- 
sons or from large corporations were only a minor misdemeanor and 
a venial sin, these thefts would multiply rapidly, as, for instance, the 
adulteration of goods, the falsification of weights and measures, the 
defrauding of insurance companies, railroad corporations. State 
treasuries, etc., and thus incalculable injury would be done to society 
at large by destroying the confidence and trust and good faith on 
which commerce and trade and business enterprise of every kind 
depend. An amount must be fixed, therefore, to exceed which will 
be always and in all cases a grave transgression and a mortal sin, 
no matter from whom it is stolen, because a grave injury is thereby 
done to the security of the State and the interests of its citizens. 

To fix this amount in dollars and cents is one of the difficult tasks 
of moralists. To say, in a general way, that whenever the amount 
stolen, although not inflicting a serious injury on the individual 



204 THE CASUIST. 

owners of, say, a railroad, still is sufficient to place in jeopardy the 
peaceful possession of property and render the State insecure, it is a 
materia gravis and a mortal sin, does not help much to a solution of 
the difficulty. For when we come to estimate in money the amount 
of damage that constitutes a materia gravis, we discover an ingens 
auctorimi dissensio. The authorities on this matter are agreed that 
when the sum stolen belonged to a number of owners, all consti- 
tuting one moral body, as, for example, a railroad company, the 
sum must be absolute gravis, that is, the sum taken must not nec- 
essarily inflict a grievous injury on the individual holders of stock 
in any particular company directly, but only on the State directly 
by rendering property insecure, and through the State indirectly 
on the stockholders. 

But what the materia gravis amounts to, when estimated in 
money, is difficult to determine with precision. One reason for 
this difficulty is the fluctuating value of money, or the varying pur- 
chasing power of money throughout any given period of time, as is 
apparent from the history of money in the United States and Eu- 
rope for the last century. It is estimated by skilful economists that 
the purchasing power of money has suffered a decline of from 30 
to 40 per cent, in the last one hundred years. Another reason for 
this same difficulty is the difference in purchasing value of money in 
different countries at the same time. Thus the same amount of 
money will purchase less in the United States than it will in Europe, 
as American tourists know to their comfort. Thus the estimates 
given by moralists, as to what constitutes materia gravis in this mat- 
ter, depend largely on the time and the country in which they live. 
Father Konings, C.SS.R., who understood American conditions 
well, thinks that $10 constitutes a materia gravis when taken from 
very rich persons or great corporations. Father Tanquerey, S.S., 



RESTITUTION TO A RAILROAD COMPANY. 205 

thinks that $7 or $8 is a materia gravis. Fathers Sabetti, S.J., and 
Lehmkuhl, S.J., think that $5 is a materia gravis. Palmieri, SJ., 
thinks that even for Europe 100 francs, or over $19, is required 
to constitute a materia gravis. His words are : "Audivi aHos viros 
doctos, qui ob valde in dies imminutum pecuniae pretium, vellent 
nunc materiam absolute gravem earn esse, quae centum plus minus 
francos exaequet, quibus baud aegre assentimus," (Ball. Pal., vol. 
I, n. 607.) 

From this opinion of Palmieri Father Genicot, S.J., dissents, and 
thinks that Palmieri exaggerates the decline in the purchasing power 
of money, and prefers to adhere to the generally accepted opinion 
of contemporaneous writers. We are inclined to think that Father 
Konings' opinion is just and reasonable, and that it is safe to say 
that $10 constitutes a materia gravis when stealing from a large 
corporation, like a railroad company. 

2. Small sums stolen by the same person, but at different times, 
may coalesce, either by reason of the thief's intention, from the very 
start, of stealing small sums until he acquires a large amount, or 
else, where there is no intention from the start of repeating the 
small thefts, but still they are repeated, as occasion offers, then the 
short space of time intervening between one small theft and another 
will bring them so closely together as to make them really one moral 
act, and that grievously injurious. If a sufficiently long interval 
elapse between one small theft and another, then the victim of them 
has ample time to recover from the injury done by one before 
another is inflicted, and therefore is not in the long run injured 
grievously. What this time limit in which these small thefts must 
follow one another in order to coalesce is, theologians are not 
agreed. Roncaglia thinks that these small thefts should not be sep- 
arated by more than two months in order to coalesce ; if they occur 



2o6 THE CASUIST. 

at intervals longer than two months, they can not be said to coalesce 
and to inflict a grievous injury. St. Alphonsus indorses Roncaglia's 
opinion. Sometimes an interval of one month, or even less, is suffi- 
cient to prevent very small thefts from coalescing. This is the 
opinion of Ball. Palmieri (n. 78). 

A distinction must be made, however, between small thefts com- 
mitted against individuals and small thefts committed against large 
corporations. When small thefts are committed against a corpora- 
tion, they must amount to a sum half again as large as required to 
constitute a mortal sin if taken at one time from a corporation. Be- 
cause a corporation is less injured by ten small thefts, done at con- 
siderable intervals of time, even though they amount to a consider- 
able sum, than by the single theft of a considerable sum. Therefore, 
if $10 constitute a materia gravis if taken at one time from a cor- 
poration, $15 will be required to constitute a materia gravis if taken 
in small sums and at different times. 

3. Now, in regard to Titius, there seems to have been an inten- 
tion from the very start of stealing a considerable sum. If there 
was, then he committed a mortal sin when he first formed this in- 
tention, because the intention was graviter peccaminosa. A grave 
obligation to restore, however, did not arise for Titius until he had 
accumulated about $15. Although Titius, over and above the mor- 
tal sin he committed, when he formed the intention to defraud the 
railroad company, committed a new mortal sin each time that he 
stole a small sum, because he put into effective execution an inten- 
tion that was mortally sinful, still in or dine ad confessionem he 
commits one mortal sin by all these small thefts. 

4. Titius is also guilty of the sin of co-operation, being a party 
to the thefts that the conductors committed. He would be bound 
also, ex hoc capite, to make restitution of the sum the conductors 



RESTITUTION TO A RAILROAD COMPANY. 



!07 



stole, but only secundo loco. Practically speaking, however, Titius 
will not only be quite ignorant of his duty in this respect, but it 
would be difficult to convince him of it, and still more difficult to 
persuade him to perform it. Therefore, it will be more prudent for 
the confessor to say nothing about this latter obligation, and simply 
to urge Titius to make restitution to the railroad company for what 
he himself took, leaving him in good faith as regards the rest. 



XLVIII. FRATERNAL CORRECTION. 

Titius, a young man of otherwise good parts, is becoming very 
much addicted, of late, to the use of strong drink. His friend 
Cajus, a young man of the same standing as Titius, perceives this 
growing habit with alarm, and considers seriously within himself 
what may be his conscientious duty in the case. Cajus has, on sev- 
eral occasions, taken Titius to task for his excessive drinking, but 
only in a mild way and with considerable hesitation. Titius' father, 
a good man, knows that he drinks, and many of Titius' young men 
friends know it. But they have neglected, up to the present, to 
remonstrate with him about it, and, in the meantime, the case is be- 
coming more and more aggravated. Cajus is beginning to have 
qualms of conscience about his duty of correcting Titius, under the 
circumstances. Is Cajus bound, under pain of mortal sin, to ad- 
monish and correct Titius, or may he leave the burden of correct- 
ing Titius to Titius' father and friends ? 

Solution. — Our Saviour imposes on us the precept of fraternal 
correction, when He says : "Si peccaverit in te f rater tuus, corripe 
eum" (Matt, xviii.), charity demands of us that we rescue our 
neighbor from grievous evil whenever we can do so without serious 
inconvenience or damage to ourselves. There is no question here 
of obligations arising from justice or piety ; as, for instance, between 
pastor and. people, or between parent and child. There is question 
here of an obligation arising from charity, as between private indi- 
viduals. Now drinking to excess is a grievous evil and a mortal 
sin, and although mortal sin can not be committed except by the 
free will and consent of the sinner, still, i, it may be difficult for 
the sinner to reform, if left to himself, either because he does not 

208 



FRATERNAL CORRECTION. 



2og 



reflect, or does not realize his condition; 2, the sinner may be led 
into sin by reason of external causes, from which it may be very 
difficult for him to extricate himself, unless admonished and assisted 
by others. There is a graver obligation of saving our neighbor 
from mortal sin than there is of saving him from serious temporal 
loss into which he is plunging of his own free will. And yet we 
are bound, sometimes even under mortal sin, to save our neighbor 
from worldly loss, into which he is rushing knowingly and willingly, 
when we can do so, without serious damage to ourselves. By much 
the more reason, therefore, are we obliged to save our neighbor 
from serious spiritual injury. 

However, in order that there be created a grave obligation to 
correct our neighbor, the following conditions must exist: i. We 
must be sure that our neighbor is committing grievous sin, or at 
least that he is in danger of committing it. 2. There must be little 
or no probability that our neighbor, if left to himself, will correct 
himself. 3. We must have hope of effecting some good by our 
correction. 4. There must be no one else more fit or equally fit to 
admonish, and who will, in fact, administer the admonition. 5. 
There must be no danger of our incurring any serious risk by 
reason of our admonitions. 

If these conditions are verified, then, from the very nature of the 
case, and according to the unanimous opinion of theologians, there 
arises a grave obligation of correcting our brother. 

However, even here, it must be observed, there is not so much 
question of correcting a past sin as of preventing a future sin ; that 
is to say, we are obliged to prevent our neighbor committing grave 
sin or repeating it, and we are obliged to prevent him remaining a 
long time in a state of spiritual damnation. Therefore it follows 
that we are not obliged to correct our brother as soon as he sins, not 



2IO THE CASUIST. 

only because, as a rule, the above conditions will not be verified but 
also because the sinner himself is not obliged to repent directly 
he has fallen, but may wait some time ; and therefore neither are we 
obliged to admonish him immediately upon his fall. 

Now, on the other hand, there are circumstances which excuse 
us from the obligation of correcting our neighbor. 

1. If there is hope that our brother will rescue himself, in a short 
time, or that he will not fall again, our obligation ceases. 

2. If our correction would only make matters worse we are ex- 
cused from correcting, except where damage is being done to others 
or to religion, etc. 

3. If it be probable that parents or superiors will administer the 
correction, then those who are of equal standing with the sinner 
are released from the obligation. 

4. In like manner, if I can prudently judge that some one else, 
more fit than I, will admonish the delinquent, I am excused. 

It is rare that we are obliged to correct some one whom we do not 
know, because we can not judge what may be the result of our cor- 
rection. A private person, of easy-going nature or indolent disposi- 
tion or who is timid and backward, who thinks himself unfit to ad- 
minister a correction, and therefore omits it, but who is, never- 
theless, willing to act, if he thought it quite necessary or profitable, 
would commit a venial sin, by not correcting. Indeed, private per- 
sons are rarely obliged to administer a correction, unless they be 
more or less intimately acquainted, because it is rare that all the con- 
ditions creating a grave obligation are present. And seldom, if ever, 
is an inferior obliged to correct a superior. Scrupulous persons are, 
as a rule, exempt altogether from the obligation of administering fra- 
ternal correction, because they are incapable of distinguishing when 
there is an obligation to admonish and when there is none. More- 



FRATERNAL CORRECTION. 2 1 1 

over, on account of their scrupulous nature, they would commit a 
great many imprudences and torment themselves beyond measure. 
As a rule, therefore, it is better that they should not correct others, 
except in extraordinary and very evident cases. 

Here we wish to lay stress on a point of considerable importance, 
in this matter, and that is that it is neither the duty nor the privilege 
of private individuals to pry into the lives of their neighbors, with 
a view to correcting them. All writers on this matter call attention 
to this point. Even superiors are admonished to be moderate and 
conservative in their scrutiny of the lives of those under them. We 
are obliged to administer a correction only in those cases that fall 
under our notice, without our seeking them. 

Let us now apply these remarks to the case in hand. 

1. If there is any hope at all that Titius' father or his other friends 
will administer the necessary correction, then Cajus is not obliged to 
do so. 

2. If there is only slight hope or likelihood that an admonition 
coming from Cajus will do any good, then there is no obligation to 
give it. 

3. If Cajus is scrupulous or overnervous or inclined to exaggerate, 
it were better that he abstain from correcting. 

4. If Cajus fears harm for himself or for those connected with 
him, resulting from the correction, as, v. g., enmities, loss of posi- 
tion, breaking of a marriage engagement, then he is not obliged 
to act. 

5. But if Cajus is a prudent man, whose admonitions will likely 
be heeded, and if he feels convinced that no one else will administer 
the necessary correction, and if he has nothing to fear from it, ex- 
cept that Titius may feel sore about it, etc., then Cajus is bound 
in conscience to administer a prudent, earnest, and charitable correc- 



212 THE CASUIST. 

tion to Titius, in order to save him from the great evil that is de- 
stroying him. Cajus must make it evident to Titius that he is 
acting, not from motives of fault-finding or recrimination or 
personal indignation, but in a spirit of true, disinterested Christian 
charity. 



XLIX. A PASTOR'S WATCHFULNESS OVER HIS 
PEOPLE. 

Titius, a parish priest, is assiduous in giving good example to 
his people, in the administration of the Sacraments, in preaching the 
gospel ; but beyond this his activity does not reach. He does not 
bother much about the individual members of his parish, seldom 
admonishes any of them privately, though he knows that some of 
them are living in sin and giving scandal, knows little about their 
homes or how they live, beyond what he hears in the confessional 
or picks up from casual conversations. He admits, of course, that 
if he did extend his activity a little more beyond the precincts of the 
parish church, he could accomplish more good ; but he claims, at 
the same time, that he has no strict duty to do so. He contends that 
when he became a priest, he took on himself the obligation of lead- 
ing a priestly life and giving good example, of administering the 
Sacraments and of preaching the gospel to the people, and that with 
the accomplishment of this all grave obligation ceases. If he were 
obliged to do more, he claims, the life of a priest would become an 
intolerable burden. He regrets, at times, that he has not a little 
more of the "spirit of the saints" ; still the "spirit of the saints" 
is a spirit of heroism, and no man is obliged, "sub gravi," to practise 
heroism. And thus he argues himself into a feeling of security, 
"against the evil day." Is Titius' position really secure? 

Answer. — Although Titius does his duty with regard to giving 
good example, administering the Sacraments and preaching the 
gospel, nevertheless there will continue to be in the parish a certain 
number of people living in grievous sin, and giving grave scandal, 
openly or secretly, who are not reached or influenced by Titius' 

213 



214 ^^^ CASUIST. 

ministry. There will be some in the parish who seldom or never 
go to Mass, or to the Sacraments ; some who drink to excess ; some 
who live in hatred or dissensions ; some who are ruining their 
children by bad example, by neglect, by indifference ; some who are 
being daily submerged by the temptations and difficulties which 
surround them. 

Now, although it is true that not even heroism on the part of the 
priest will remove all these sins and scandals, still their number 
may be greatly reduced in any parish by the timely warnings and ad- 
monitions of the pastor, given to individuals in private. And it is a 
part of a priest's office to do this. If he neglect it, he has reason to 
fear the approach of almighty God : "If thou dost not speak to warn 
the wicked man from his way: that wicked man shall die in his 
iniquity, but I will require his blood at thy hand" (Ezech. xxxiii, 8). 

If you ask, at how great sacrifice must a pastor do this, the 
theologians answer, that although there are cases where a priest 
is bound to sacrifice even his life to save a soul from extreme danger 
of being damned, or to prevent very grave public scandal (the good 
shepherd giveth his life for his sheep), nevertheless the occasions 
are more or less rare that a priest will be obliged, at great sacrifice 
to himself, to administer private warnings and admonitions to in- 
dividual parishioners. If he were obliged to do so constantly or 
frequently, it would render the office of a priest so burdensome that 
conscientious men would be deterred from assuming it. Thus, for 
instance, De Lugo: "Neque enim tenetur superior, cum quolibet 
suo damno, inordinationes impedire: nee ad hoc gravissimum onus 
intendunt sese obligare, quando hujusmodi munera suscipiunt, sed 
ad rationabilem et prudentem vigilantiam et curam, quae propor- 
tionata debet esse, et major ad majora, et minor ad minus gravia 
praecavenda" (xiv. 133). 



A PASTOR'S WATCHFULNESS OVER HIS PEOPLE. 215 

I. The pastor is bound in duty to be vigilant and to make in- 
quiries, otherwise many evils will escape him, or only come to his 
knowledge when it is too late to remedy them. "Quae potest esse 
pastoris excusatio, si lupus oves comedit, et pastor nescit," writes 
St. Gregory. The pastor should know what children attend Cate- 
chism, and what children do not. He ought to know who among 
his parishioners fail to make their Easter duty; what schools the 
children attend; what books and papers and magazines are to be 
found in their homes; where the children are employed, especially 
the girls ; whether peace reigns in the family, or whether there be 
grievous quarreling or hatred and discord, intemperance and blas- 
pheming. 

But, some one may ask, ought Titius to make minute inquiries into 
the lives of his parishioners, in order to learn whether they are 
leading really moral, Christian lives? 

We answer, without hesitation. No; he should not. To oblige 
him to do so would be to make his office an intolerable burden, 
to torment him with scruples, and to make him detested by his 
people. The great theologian, Diana, says of this too close scrutiny 
of the private affairs of parishioners, that it begets scandal and 
hatred and dissensions. People will not tolerate that their private 
affairs be scrutinized by others, and such scrutiny, by its very nature, 
is damaging to the honor and esteem we owe our neighbor, and 
which all people desire should be shown them (Diana, vii. tr. 4, 

n- 25). 

Hence the theologians lay down the rule that the pastor is obliged, 
in conscience, to make some inquiries about his parishioners, but 
only in a general way; except in some very particular case, where 
he has ample reason to suspect that something is seriously wrong 
and which he believes he can remedy. In this case he is in duty 



2i6 THE CASUIST. 

bound to make a more minute but always prudent and cautious 
inquiry. We say prudent and cautious, because if prudence and 
caution are not used, then no good, but a great deal of harm, will 
be done. 

II. The confessional should never be made use of for the purpose 
of getting information concerning the parish. If it be used for this 
purpose, then people will come to Confession, not so much to tell 
their sins in a spirit of true penitence, as to rehearse the gossip and 
scandal of the parish. And many will refrain altogether from going 
to Confession, lest they be cross-questioned in this manner, or be 
thought by others to be scandal-mongers. 

III. Even outside of the confessional the pastor should be very 
slow to listen to any information from others, especially from his 
own servants or help. The only safe method for him to pursue, 
if he must ask others, is to ask some good, level-headed, godly man, 
who may have opportunities for knowing what is going on, and 
who will not exaggerate or falsify. 

IV. But what is the pastor to do if he finds that certain sins 
are quite common in the parish? Should he administer private cor- 
rections and warnings to individuals ? No ; he should not. In such 
a case he should give the warnings and corrections in the Sunday 
school, or in his sermons from the altar. Scavini says : "Plerumque 
impossible est ut omnes singillatim corrigantur, cum nimius sit 
delinquentium numerus : quo in casu correctio prudenter fiat in cate- 
chesibus et publicis concionibus" (I., 452). 

V. In what cases, then, should private warnings be given to 
individuals ? It is difficult to say, precisely, in what cases the pastor 
should admonish individuals privately. By way of suggestion, we 
would say : 

(a) In case of public scandal, as when parishioners have gone 



A PASTOR'S WATCHFULNESS OVER HIS PEOPLE. 217 

to a non-Catholic minister, or civil magistrate, to be married ; con- 
ducting saloon business in a scandalous manner; young girls fre- 
quenting public dance halls, etc. 

{h) In case of scandal that is not public, if it be of a serious 
nature, as people living in concubinage, Catholic druggists selling 
immoral goods, dealers in immoral pictures, books, etc. 

(c) Where parents are very delinquent with regard to their 
children, not sending them to Catechism, exposing them to grave 
dangers without necessity. 

((/) Where a person has neglected his Easter duty, through care- 
lessness or indifference. 

(^) In cases of hatred or discord among members of a family. 

(/)In case of grave detraction, or other sin, committed in the 
presence of the pastor. 

In general, the rule may be laid down, that a pastor is bound to 
correct in private whenever all other means fail of result, and 
there is reason to believe that a warning or correction, administered 
in private, will do good. 

VI. As regards the manner of admonishing and warning people, 
in private, of their sins, the following suggestions are gleaned from 
the best theologians : 

(a) The pastor's own life ought to be without blame, and he ought 
to endeavor to make himself loved and esteemed by his people. 

(6) He ought to pray fervently to God that his warnings may be 
heeded. 

(c) He ought to base his admonitions on natural as well as 
supernatural grounds, especially when expostulating with persons 
who have little or no fear of God. 

{d) He ought to choose an opportune moment for reproving. 
Reproofs should not be given in the presence of others, unless it be 



2i8 THE CASUIST. 

necessary, nor in such a way that friends or neighbors may suspect it. 

{e) The pastor must make it evident to the guihy party that he 
is acting solely for the temporal and eternal good of the sinner. He 
must speak earnestly but kindly, not vilifying the parishioner, but 
rather praising his good qualities, and expressing the confidence 
that he will not disappoint one's hopes in his regard. 

(/) Lastly, it may be better in some cases to work through others 
than to interfere personally. A judicious Catholic layman or woman, 
of good standing in the parish, may do more good in particular 
cases than a priest. 

With these remarks in mind, and they are gathered from the best 
sources, from St. Alphonsus, Cardinal De Lugo, Diana, Berardi, etc., 
the conclusion naturally follows that the position Titius has taken, 
regarding his duty toward his parishioners, is not fully justified by 
the teachings of sound theology. It is a great deal what Titius does, 
but it is not the whole law. To keep a prudent, cautious vigilance 
over individual parishioners, and to reprove in private, is not to 
practise heroism. To require of a pastor a constant and minute 
surveillance over the lives of his parishioners were indeed, as De 
Lugo admits, to render the office of the priest an intolerable burden, 
and to deter conscientious men from entering the priesthood; but 
to require of a pastor a reasonable and prudent watchfulness over 
the morals of his people is neither contrary to the teachings of 
sound theology nor opposed to the dictates of sound sense. 



L. THE MEDICAL SECRET. 

A recent work on "Social Diseases and Marriage" (Prince A. 
Morrow, M.D.) quotes the following case: "The father of a young- 
woman asks information relative to the health of a young man 
(your patient) who is engaged to his daughter. 'I wish to ask, 
under the seal of secrecy, certain details as to his malady. I beg 
you to say whether I can or can not accept him as a son-in-law. I 
hope that you will take into consideration the embarrassment of a 
father placed between the desire to give to his daughter the hus- 
band of her choice and the fear of the results the marriage may 
have, if the hints that have been given me are unfortunately true.' 
In the case given above should the physician, entrenching himself 
behind the Hippocratic oath and the proscriptions of the law, guard 
an absolute silence, or, only interrogating his conscience, should 
he make it the judge of the secret confided to him, to divulge it, or 
be silent, according to circumstances?" 

Answer. — Secrets committed to professional men, v. g., physi- 
cians, lawyers, etc., by reason of their profession are known in 
theology as "secreta commissa rigorosa." They impose an obli- 
gation, arising from strict justice, ex stricta justitia, and, therefore, 
in a grave matter they bind under pain of mortal sin. They impose 
a graver obligation than "secreta naturalia," or "secreta promissa." 
These latter are binding, ordinarily, "ex Melitate tantum." The 
"secretuni commissum rigorosum" binds under circumstances 
where otherwise the secret would have to be revealed, because the 
good of the public demands that the secret be kept inviolate. And, 
therefore, even though a judge in a court of law or other superior 
should lawfully ask for information that would involve the betrayal 

219 



2 20 THE CASUIST. 

of a "secretum commissum," it would not be right to answer, and 
if there were no other means of guarding the secret, the physician 
or lawyer, etc., may and must answer by a flat denial of any knowl- 
edge of the subject. Of course the laws of civilized countries pro- 
tect professional men in the keeping of professional secrets. In the 
work mentioned above the author quotes the opinions of a number 
of medical men, bearing on the case he cites, which it may be 
interesting to quote in this connection, as showing the attiude of 
the medical fraternity toward the duty of a physician to guard under 
any and all circumstances the medical secret. Dr. Langlebert, from 
whom the above case is cited, indicates the physician's duty in the 
circumstances as it appears to him as follows : He would answer the 
young woman's father, who wished to learn from him the condi- 
tion of health of his prospective son-in-law, thus : "I regret that I 
can not give the information you ask. The best you can do, if you 
intend to carry out this project of marriage, is to inform the young 
man of the warnings you have received, or have him come with you, 
or send me a writing by which he authorizes me without restric- 
tion to say whether he can or can not espouse your daughter." The 
physician ought to interdict all kinds of information as to the health 
of a patient on the occasion of marriage ; as a professional prin- 
ciple, an invariable rule of conduct, he should take refuge behind 
the proscriptions of the law. The alternative is cruel. It requires a 
certain courage in such cases for the physician to remain master of 
himself and faithful to his duty. If it be a misfortune to society, 
it would be a much greater damage to permit the enfeeblement of 
the tutelary principle of the medical secret, which is one of the 
necessities even of the social order. 

Dr. Gaide, commenting on this case, says : "If a client affected 
with constitutional syphilis, which resists all treatment, does not 



THE MEDICAL SECRET. 2 2 1 

fear to solicit the hand of a pure young woman, who is the joy of 
her family ; if the father of this young woman comes to demand of 
me in confidence, if he can in all security give her to this man, who 
would soil her by his first contact and leave her as her only con- 
solation children affected by his malady, shall we respond with a 
silence which may be misunderstood, and thus render ourselves ac- 
complices of a marriage, the fruits of which will be so deplorable? 
Never would I have the courage to obey the law under such cir- 
cumstances. My conscience would speak higher than it, and with- 
out hesitation I would say, 'No, do not give your daughter to this 
man,' and I would not add another word." 

Juhel Renoy maintains that it is not only lawful, but even com- 
pulsory for any doctor who is a man of honor and courage, to oppose 
and even denounce any criminal projects his patients might en- 
tertain in regard to marriage. He cites two instances in which 
he had undertaken the cause of young girls who were about to fall 
into a trap of this kind, and as his patients were without conscience, 
he refused to listen to the moral reason he adduced, he declared 
that he did not feel bound to secrecy toward them any longer, and 
that he would either go or send to the parents of the young women 
and warn them. Under this threat one of these marriages was 
broken off, but a more direct interference was required in the other 
case. He sent for the girl's father by one of his confreres, and re- 
plied without hesitation to the question put to him, "No, sir, do not 
marry your daughter to Mr. X," with so much emphasis that the 
marriage was broken off. 

Commenting on this action of Renoy, Dr. Jullien says : "If the 
result was fortunate, the method employed was detestable. It was 
treason, perpetrated with the best intentions, but still treason, for it 
is all very well to say the patients were warned, but it was not until 



222 THE CASUIST. 

they were no longer masters of their secret, which would no doubt 
not have been revealed if they had known what use there was to 
be made of it. Strict duty would have required that before receiv- 
ing this confidence our confrere should have warned the parties 
interested, that he would publish the information if he saw fit." 

Dr. Morrow, from whose excellent work these extracts have been 
made, expresses his own opinion on this subject in the following 
words : "While the obligation of the medical secret is in the general 
interest of the social order, and should be maintained as a fixed prin- 
ciple of professional conduct, it may be admitted that a situation of a 
peculiarly aggravating character may present itself when the patient 
shows himself an exceptional sort of brute by the obstinacy with 
which he adheres to his criminal purposes after he is assured that he 
will almost certainly infect his wife — in such a case the physician, 
knowing all the circumstances and fully appreciating the tragic sig- 
nificance of such a step, must be guided by his own lights and con- 
science. If he should consider the criminal intent of this monster as 
entirely without the pale of professional protection, and refuse 
to stifle his own feelings as a man of heart and conscience, who 
shall condemn him? Such a man is far more likely to prove loyal 
to the highest ideals of ethical duty in his relations with his patients 
in general than the man who views these social catastrophes with 
a cold-blooded indifference, disclaiming all personal responsibility, 
and considers that in guarding the dissolute secret of his patient he 
is doing his whole professional duty." 

It is clear from these extracts, and from the opinions of many 
other medical men which might be quoted, that the medical fraternity 
is not at all united as to the ethics of revealing the medical secret, 
even in an extreme case, like the one we give. The subject indeed is 
fraught with much difficulty. Those who hold that it is never 



THE MEDICAL SECRET. 



223 



allowed to betray the medical secret, not even to prevent the com- 
mission of a crime, maintain that the social welfare would suffer 
more, eventually, by the revelation of the secret than by its keep- 
ing. For the very ones who have most need of confiding in a 
physician are the very ones who would be most deterred from such 
confidence, by the knowledge that the physician might under cer- 
tain circumstances lawfully betray their secret. And it was in this 
conviction, they say, that the laws of many countries make it a 
crime for the physician to reveal his patient's secret for any pur- 
pose whatsoever, even to protect the innocent or to prevent the 
commission of a crime. Thus the French Penal Code, art. 378, 
decrees that "physicians, surgeons and other officers of health, also 
pharmacists, midwives and all other persons, the depositaries, by 
their state or profession, of secrets which have been confided to 
them, outside of cases where the law obliges them to denounce, who 
shall reveal their secrets shall be punished with imprisonment from 
one to six months, and by a fine of from one hundred to five hun- 
dred francs." And recently in England, the House of Lords sus- 
tained the decree of the lower court, punishing an eminent physician 
by an enormous fine for having revealed to the wife, to protect her 
from contamination, the medical secret of her husband, who was 
one of his patients. 

A German court, on the other hand, decided in 1903 that the 
obligation to secrecy on part of the physician ceases when a higher 
moral obligation urges him to divulge the truth. In the instance 
of husband and wife the court considers the physician as permitted, 
and even in duty bound, even against the expressed will of the sick 
partner, to apprise the other of a danger of infection. The court 
adds that such higher moral obligation may well be present also in 
instances other than between husband and wife. 



224 THE CASUIST. 

In the case before us it must always be kept in mind that the 
patient, who has committed his secret to the physician, is going 
to commit a crime, a moral, if not a legal crime, most odious in its 
nature and most far-reaching and destructive in its effects. The 
physician is the only one who can prevent the commission of the 
crime, because he alone knows the secret. All his pleading, all his 
admonitions, all his denunciations to the patient in private are of no 
avail. The crime will be committed, unless the physician breaks 
his professional silence and reveals the secret of his patient. Does 
strict justice toward the patient oblige the doctor to secrecy under 
these circumstances? Does the welfare of the social order demand 
that even in this extreme case the secret of the criminal shall be 
guarded inviolate, though he is about to perpetrate a great wrong? 
The theologians are unanimous that in a case like this neither justice 
toward the patient nor the interests of the social order require of a 
physician that he keep inviolate the secret of a patient who is de- 
termined to commit a crime, the cause of which crime or the in- 
centive to it is contained in the secret. 

This is the doctrine of St. Alphonsus (de oct. praec. 971) : "Potest 
manifestari secretum commissum ex justa causa, nempe si servare 
secretum verteret in damnum commune, vel alterius innocentis, seu 
etiam ipsius committentis, quia tunc ordo charitatis postulat ut 
reveletur." 

Salmanticenses (tr. xiii., de restitut. cap. 4, n. 82) : "Similiter 
secretum etiam commissum revelandum est, quoties ejus observatio 
vergit in damnum commune, vel alicujus innocentis, quia secretum 
non potest obligare contra caritate malteri debitam, sed ex caritate 
debemus cavere damna communitatis et innocentis." 

Lugo (de Just, et J. disp. 14, n. 142) : "Secretum etiam com- 
missum non habet locum in iis casibus, in quibus ipse qui secretum 



THE MEDICAL SECRET. 



225 



commisit, injuste vexat rempublicam vel alium innocentem, nee vult 
ab injuria desistere : tunc enim quantum opus fuerit ad injuriam 
avertendam, poteris secretum commissum revelare, etiamsi promis- 
isses et obligasses te ad sustinendam mortem, et quaelibet mala 
pro custodia secreti : hoc enim non tollit, quod possit postea vis vi 
repellere." 

This is the doctrine also of modern moralists, v. g., Lehmkuhl, 
Konings, Genicot, Noldin, etc., as will appear from a consultation 
of their treatises on the eighth commandment. It can scarcely be 
maintained with any good show of reason that the interests of 
society demand that a criminal be shielded, while committing a 
crime, by guarding his secret. It will not interfere with the free 
and confidential relations between physician and patient if it is under- 
stood by the patient that his secret may be revealed if such reve- 
lation be necessary to prevent him committing a crime. The phy- 
sician's duty toward society and toward an innocent third party out- 
weighs and ought to outweigh his duty toward a patient contem- 
plating a crime against the community at large or an innocent private 
citizen. It would make for immorality to close the mouth of a 
physician in such circumstances. Of course, the physician must 
endeavor by every other legitimate means in his power to dissuade 
the patient from committing the crime before it becomes lawful for 
him to have recourse to the extreme measure of revealing his secret. 
But it can be no part of the contract entered into by patient and 
physician, that the physician shall be silent when his silence becomes 
immoral, as it does when it aids and abets the commission of 
crime. 

To this line of reasoning it may be objected that it calls into 
question the morality of the laws of many civilized nations, pro- 
hibiting the revelation of the medical secret even in as extreme a 



226 THE CASUIST. 

case as the one under discussion. To this we answer in the words 
of the author quoted above : 

"It is worthy of note that in Europe there is manifest a growing 
dissatisfaction upon the part of many medical men, amounting in 
some instances to an active protest, against the intangibility of the 
medical secret, especially its inflexible application in cases where 
the question of marriage is concerned. As indicating the drift of 
professional sentiment in this direction, in the discussion upon 
the 'Sanitary Guarantees of Marriage,' before the Societe Frangaise 
de Prophylaxie Sanitaire et Morale, July, 1903, many authori- 
tative voices were raised against the dogma of the professional 
secret in the matter of marriage. M. Forin demanded 'that the 
law authorize the physician to no longer respect the professional 
secret, when it comes to a project of marriage.' In the opinion 
of M. Crequy 'the medical secret ought to have exceptions which 
in the superior interest of the race, should also apply to venereal 
maladies.' MM. Cruet and Valentino presented essays demanding 
the relaxation of the medical secret in cases where the interests of 
the individual protected were opposed to the general interests. M, 
Valentino declares that professional secrecy is the most powerful 
obstacle to all real hygienic progress, as by keeping concealed all 
morbid conditions, it impedes the efforts of the social forces against 
the spread of disease, renders ineffective the law for the compulsory 
notification of infectious diseases, and prevents the sanitary pro- 
tection of marriage." 

It is hardly necessary to remark that the physician is bound toward 
the innocent third party only "ex caritate." Toward his patients 
he is bound "ex justitia"; toward others "ex caritate." Now 
charity does not bind "cum tanto incommode." Consequently 
v.herever the physician would incur serious risk, as legal prosecu- 



THE MEDICAL SECRET. 227 

tion, or loss of practice, etc., he is not obliged to protect an innocent 
third party from injury, by revealing the medical secret. 

N. B. — What is said here about the medical secret, applies to all 
secrets committed to priests outside of Confession, to lawyers, mid- 
wives, nurses, druggists, dentists, in short, all professional men who 
by reason of their profession are made the guardians of the secrets 
of others. 



LI. RESPONSIBILITY FOR MASS STIPENDS. 

Mr, M. on his deathbed left Father Joseph $500 to say Masses 
for the repose of his soul. Half of this sum Father Joseph gave to 
another priest, a personal friend and a man in every respect above 
reproach, who, he knew, would say the Masses without fail. The 
two hundred and fifty Masses that Father Joseph kept himself he 
found it impossible to say within a year from the time he received 
them owing to the large number of nuptial and funeral Masses he 
was obliged to say. At the end of the year Father Joseph has still 
one hundred Masses to say for the repose of the soul of Mr, M. 
Father Joseph's particular friend, the priest, to whom he gave the 
other two hundred and fifty Masses to say, allowed himself to be 
persuaded to invest all the money he had, including this sum of 
$250 for Masses for the soul of Mr, M., in some real estate transac- 
tion and lost it all. He was taken sick a few months afterward and 
died, leaving no money and making no provision for the saying of 
the two hundred and fifty Masses given him by Father Joseph, 

Father Joseph has heard something about a special decree regard- 
ing Mass stipends, issued last year by the Holy Father Pius X., and 
which imposes graver obligations in this matter than was formerly 
imposed by the moralists. He is much worried as to whether this 
new decree aiifects his case, and to what extent. And he would like 
to know what is his duty in regard to these Mass stipends which he 
received from Mr. M. 

Father Joseph's query resolves itself into two points: 

I, What must he do with the hundred Masses which he himself 
has left over at the end of one year from the time of receiving them ? 
May he continue saying them, since it was not his fault that thev are 
still unsaid? 



RESPONSIBILITY FOR MASS STIPENDS. 



229 



2. Is Father Joseph responsible for the two hundred and fifty 
Masses which he gave to his friend, together with the stipends? 
"Videat ipse," he thinks, with regard to his friend. When he 
handed over the Masses, together with the stipends, to a responsible 
priest, he acted prudently and reasonably, and he does not see why 
he should still be held responsible. He has read in many a volume 
of "Casus Conscientiae," that if a hundred Mass stipends were 
stolen from a priest through no fault of his, before the Masses were 
said, the priest would not be bound to say them, because it would 
be unreasonable on the part of the donor to require this of him. 
In accepting the stipends for the Masses, either for himself or for 
others to say, he did not intend to be responsible for the money 
under all circumstances, but only to a reasonable and just extent. 

Answer. — On May 11, 1904, Pope Pius X issued a special decree 
concerning "Missae manuales," to be binding on all priests through- 
out the world. These "Missae manuales" are the Masses that a 
priest receives, from day to day, from the faithful, to say for one 
intention or another, and for which he receives a stipend. "Who 
must say these Masses?" "When must they be said?'' "To whom 
may they be given, in case the original recipient can not say them?" 
"In what sense is the original recipient still responsible for them, in 
case the priest to whom he gave them does not say them?" These 
are some of the questions which the Holy Father's instruction 
answers. 

It may be well, therefore, before discussing Father Joseph's case, 
to give the several articles of the Pope's decree which refer to the 
matter in hand. The decree emanates from the Sacred Congrega- 
tion of the Council, and is dated May 11, 1904. It is entitled: 
"Decretum de observandis et evitandis in Missarum manualium 
satisfactione." 



230 THE CASUIST. 

Manual Masses, according to the decree, are all Masses that the 
faithful, from day to day, request a priest to say, at the same time 
offering him a stipend for the Mass, whether the stipend be given 
out of hand (brevi manu) or be provided for in the last will, or the 
estate be burdened with the obligation of having a certain number 
of Masses said from year to year, in perpetuum, provided only they 
may be said in any church, by any priest, as the head of the family 
may elect. 

1. No priest may ask for or accept Mass stipends unless he is 
morally certain that he himself will be able to say the Masses within 
the time hereinafter fixed for acquitting that obligation; he must 
say such Masses personally, except he be a bishop ruling a diocese, 
or a prelate of a religious order having jurisdiction; if he be a 
bishop or a prelate the Masses may be said by the priests subject 
to such jurisdiction. 

2. The ordinary time limit for saying a Mass for which a stipend 
has been accepted is one month; six months for one hundred Masses, 
and in similar proportion for larger numbers. 

3. No priest is allowed to accept a larger number of stipends than 
he himself can probably satisfy within one year from the time of 
accepting them, unless with the explicit consent of the person offer- 
ing the stipend. 

4. After the lapse of a year from the date that the stipends were 
received, if through unforeseen circumstances there remain a con- 
siderable number of Masses unsaid, the obligation is to be placed 
in the hands of the bishop, together with the honorarium, unless 
it is clear that the delay is at least not contrary to the intention of 
the original donor of the Masses. In this matter the Holy Father 
burdens, "sub gravi," the consciences of those who are responsible 
for the Masses. 



RESPONSIBILITY FOR MASS STIPENDS. 231 

5. Those to whom a number of stipends has been committed, with 
the understanding that they may be given to other priests to say, 
may give them to any priests they have a mind to, provided they 
are certain, from personal knowledge, that these priests can and 
will say the Masses. 

6. Those who have given the surplus stipends, for which they 
have been unable to say the Masses, to their Ordinary, may con- 
sider themselves free from all further obligation before God and 
the Church. But whoever commits the stipends received by him 
to other priests is responsible for them before God and the Church 
until he knows for certain that the Masses have been actually said; 
and if, through the loss or the miscarriage of the money, or through 
the death of the priest, or through any other accident, there remain 
any reasonable doubt as to whether the Masses were said, the 
original recipient of the Masses is bound in conscience to say them 
or to have them said. 

These are the articles of the decree that bear upon the case of 
Father Joseph. 

It will be seen at once that they render the doctrine regarding 
Mass stipends much more stringent than the commonly accepted 
teaching of the moralists. 

Without going into further details concerning the decree, we will 
say briefly that in the light of it : 

1. Father Joseph is bound, under pain of mortal sin, to hand over 
the one hundred Masses, together with the stipends which he has 
still left after one year from receiving them, to his bishop, who will 
take care of them. And having handed them over to the bishop, 
Father Joseph is in no wise responsible for them any longer. 

2. Father Joseph must also say the two hundred and fifty Masses 
that he gave his friend to say. His friend did not say them him- 



232 



THE CASUIST. 



self, since he died shortly after receiving them, nor is there any 
record that he had them said by somebody else. In this transaction 
Father Joseph is not merely the transmitting agent between Mr. M., 
who gave the Masses, and his friend the priest, to whom he gave 
them. Father Joseph himself entered into a contract with Mr. M. 
to say the Masses. 

Nor should Father Joseph have taken the five hundred Masses 
from Mr. M. without Mr. M.'s explicit consent that he might take 
several years to say the Masses. According to the Pope's decree, it 
is expressly forbidden to accept more Masses than one can say one- 
self within a year. 

This decree of the Holy Father is in every way reasonable and 
timely, and if Father Joseph will only strive to observe its provi- 
sions in the future, it will save him from contracting a great deal 
of responsibility before God, which perhaps he would never be able 
to satisfy for in this world. 



LII. A SON'S DUTY TOWARD HIS FATHER. 

A young man, whom we will call Robert, accuses himself in Con- 
fession of having borne a great dislike and even hatred toward his 
father for many years. His father, he says, was a drunkard, and 
filled their home with shame and sorrow. He abused the mother 
and the children, cursed them, drove them from the house by 
his violence, and even threatened their lives. When Robert was 
seventeen years of age he left home, against the will of his father, 
and came to New York to make his way in the world by learning 
a trade. His father wanted him to remain at home and to go 
to work for a daily wage, which the father hoped to be able to spend 
for drink. After Robert had been in New York for a number of 
years the father died, having wasted in drink everything he pos- 
sessed, and leaving a good many drink bills unsettled in different 
taverns. Robert, who in the meantime had prospered greatly and 
had considerable money in the bank, buried his father as cheaply 
as possible ; in fact, so cheaply that it caused considerable unfavor- 
able talk among the townspeople. Nor did Robert ever afterward 
have even one Mass said for the repose of his father's soul, or ever 
offer a penny toward the payment of his father's debts. What 
judgment is the confessor to form of Robert's conduct? 

Solution. — It is necessary to separate the different counts In 
Robert's accusation in order to form a clear estimate of the sinful- 
ness or lawfulness of Robert's conduct. There are four separate 
counts in the accusation, namely : 

( I ) Robert accuses himself of harboring hatred toward his father ; 
(2) of having left home against the will of his father; (3) of hav- 
ing shown disrespect toward his father in the matter of the funeral 
arrangements, and ingratitude in not having Masses said for his 

233 



234 



THE CASUIST. 



soul ; (4) and, finally, of injustice toward others in not settling 
his father's debts. 

Let us take up each one of these four counts of Robert's accusa- 
tion, and see whether and in how far Robert may have sinned. 

I. Robert accuses himself of cherishing a great dislike and even 
hatred toward his father. Is this odium inimicitiae, or is it odium 
abominationisf Odium inimicitiae is sinful ; odium abominationis 
need not necessarily be sinful. Odium inimicitiae is the hatred we 
conceive for some one personally, not merely for the evil that is in 
him or the wrong that he does, but for himself personally, inclusive 
of the good there may be in him, and we wish him evil, precisely be- 
cause it is injury to him. Odium obominationis is something quite 
different from this. It is the strong aversion we feel for some one 
not personally, but for his vices and excesses. Thus, we hate, or 
rather abominate, the drunkard, not because of his individual per- 
sonality, but because of his drunkenness. We hate his drunkenness, 
and we shun him, not because of himself, but because of his drunken- 
ness. This odium abominationis may be a venial sin sometimes, but it 
is not a mortal sin. 

Now, as regards Robert's hatred for his father, we are inclined to 
think that it was odium abominationis, and, under the circumstances, 
that it was not a sin. If Robert ordinarily showed his father the 
respect due to him, and obeyed him in reasonable things, then the 
hatred that Robert feels for his father is nothing more than a just 
loathing and disgust for his father's excesses. He despises and 
abominates his father's "weak, sick way of vomiting up his exist- 
ence" ; and in this he would seem to be without sin. Of course, 
there is always present a danger that this odium abominatioiiis may 
go over into odium inimicitiae, and become mortally sinful, and 
Robert must be put on his guard against such a contingency. 



A SON'S DUTY TOWARD HIS FATHER. 235 

2. Robert accuses himself of disobedience against his father in 
leaving home against his father's wishes. It does not appear that 
Robert sinned in this. Robert's motive in leaving home was just 
and honorable ; namely, to render his existence useful by learning 
a trade. His father's motive in keeping him at home — namely, that 
he might have the benefit of his wages for drink — was unreasonable 
and sinful. No good reason can be advanced why Robert ought to 
obey his father, when such obedience would entail lifelong detri- 
ment to Robert's best interests. Of course, Robert is bound to see 
to it that his father does not want for food or clothing; but when 
the father has wherewith to buy food and clothing, but spends it 
for drink, there is no obligation for Robert to supply him with 
food and clothing. 

3. The third count in Robert's accusation regards his father's 
funeral, and having Masses said for his soul. In this we think that 
Robert sinned. That Robert, who had plenty of money, had his 
father buried in such a niggardly and miserly way, showed a lack 
of elementary respect for his father, and was really insulting to his 
father's memory and savored of revenge. Robert was bound to 
observe the "decencies" of society in burying his father, for these 
decencies are founded on the reasonable respect and honor which 
the conscience and feelings of men decree should be shown to others. 
There was no obligation for Robert to provide a funeral for his 
father in keeping with his means ; but there certainly was an obliga- 
tion to give his father decent and honorable Christian burial. 

Robert commits a mortal sin also in not having Masses said for 
the repose of his father's soul. His father is, in all likelihood, in 
grave spiritual need. Robert has plenty of means at his disposal to 
succor his father without grave inconvenience to himself. Not to 
do so is to transgress the law of Christ. For all theologians are 



236 THE CASUIST. 

agreed that for a child, who has the means, to refuse to have any 
Masses said for the repose of his parent's soul would be the com- 
mitting of even a mortal sin (St. Thom. 2 Q, q. loi, a. 2; Ball. P. 
n. 7; Genicot i. 346, ii., etc.). 

4. Finally, as regards the fourth count, there is no obligation for 
Robert to settle any of his father's drink bills, since he has received 
no inheritance from his father. "Liberi tenentur solvere debita par- 
entum, tantum ratione honorum acceptorum" (S. Alph. n. 333). 



LIII. APPROPRIATING ANOTHER'S IDEAS. 

The following case has been submitted to us for a solution: 
Mr. C, a draughtsman, is told by his employer to try to remember 
and make a sketch (that is, to steal the idea) of a drawing which 
was being submitted for sale by another draughtsman. Would it 
be wrong for Mr. C. to do so? 

Solution. — All theologians are agreed that an author or writer or 
architect or draughtsman has a strict right to the fruits of his genius. 
And this right of ownership in the fruits of one's intellectual labor is 
founded in the law of nature. For if it be a law of nature that men 
should have an exclusive right to the fruits of the labor of their 
hands, with much more reason ought they to have an exclusive right 
to the fruits of the labor of their brains. And if the good of civilized 
society requires that a man be secured by law in the peaceful pos- 
session of whatever property he has acquired by his industry, with 
much more reason must we hold that the good of civilized society 
requires that men be secured by law in the peaceful possession of 
that higher and more valuable kind of property, namely, the results 
of intellectual and artistic talent. There is nothing that is more 
intimate to a man — or, to speak more properly, there is no kind of 
property so intimately and closely connected with a man — as the 
fruits of his own genius. For these are the fruits of the creation of 
his own mind, and had no existence before he brought them into 
being; and therefore the fruits of his intellectual industry belong to 
him and are part of his being in a way that no other kind of goods 
and chattels can be said to be. Consequently, it has always been 
maintained by theologians and jurists alike that an author or in- 
ventor or painter, or any other intellectual worker, is entitled to ex- 

237 



238 THE CASUIST. 

elusive ownership in the results of his intellectual labor as long as he 
does not hand over his rights to the public, or part v^ith them by sale 
or free gift to another. And this strict right of an author or inventor 
or other intellectual worker to the fruits of his genius imposes a 
grievous obligation on all other persons to respect this right, and to 
avoid all invasion of it. It is not allowed to steal another's ideas, 
any more than it is allowed to steal his lands, and any such theft 
must be made good by adequate restitution. 

"Jamvero omnes concedunt quemlibet hominem plenum dominium 
habere in frustus ingenii sui quamdiu ea publici juris non fecerit; 
nihil enim magis proprium nobis esse potest quam quod proprio 
mentis labore acquirimus. Et sane si res externae domino fructi- 
ficant, a fortiori facultates internae, quae ab essentia nostra im- 
mediate dimanant. Qui igitur manuscripta vel inventa alterius sur- 
riperet, ac vulgaret, absque auctoris licentia, contra justitiam pec- 
caret, et ad damna rescarcienda teneretur ; siquidem violat duplex jus 
quod auctori competit, ne, ipso invito, edatur opus ab eo scriptum, 
et ne minuatur lucrum ex eo percipiendum" (Tanquerey, III., 39). 
Judge Kent (American Law, Vol. II., n. 365) says: 
"Another instance of property acquired by one's own act and power 
is that of literary propetty, consisting of maps, charts, writ- 
ings and books ; and of mechanical inventions, consisting of useful 
machines or discoveries produced by the joint result of intellectual 
and manual labor. As long as these are kept within the possession 
of the author, he has the same right to the exclusive enjoyment of 
them as of any other species of personal property ; for they have 
proprietary marks, and are a distinguishable subject of property. But 
when they are circulated abroad and published with the author's 
consent, they become common property, and subject to the free use 
of the community." 



APPROPRIATING ANOTHER'S IDEAS. 



'■39 



Mr. C, therefore, is not allowed, in conscience, to use the ideas of 
his fellow-draughtsman in the interest of his employer. His fellow- 
draughtsman, by offering his designs for sale, does not relinquish his 
right to them. For another to steal them or to use them against 
their rightful owner's and creator's will is to transgress the seventh 
commandment, and full pecuniary restitution must be made to the 
original designer or draughtsmen for any loss he may have suffered 
before the sin can be forgiven. 



LIV. INCURRING ECCLESIASTICAL CENSURE. 

Titus, a bishop, before placing the case of a certain holy man in 
the hands of the Sacred Congregation of Rites, with the hope of his 
beatification, issues a general decree commanding all who may have 
in their possession any writings of this holy man to send the same 
to the Chancellor within two months from the date of the decree 
under pain of excommunication, to be incurred ipso facto. The 
decree likewise threatens with the same punishment all who, having 
knowledge of the existence and whereabouts of any such manuscript, 
do not make known the same to the proper authorities. Caius, a 
priest, has in his possession several letters written to him personally 
by the dead and saintly man. He is unwilling to part with these 
letters because they were written for the direction of his own con- 
science, and if made public would lead to grave injury of his reputa- 
tion. In his anxiety he seeks the advice of a neighboring priest. 
Here he is told that he may either remove his name from the letters 
in his possession, and then turn them over to the bishop, or he may 
burn them, as human laws, especially when penal, do not oblige 
under such grave inconvenience. Caius revolves the whole matter 
in his mind for some time and finally concludes to burn the docu- 
ments. In a short time the valuable letters are destroyed. 

The question is asked (i) whether fear of loss of reputation or 
such like inconvenience saves one from incurring censure; (2) 
whether the advice given to Caius by his brother priest was lawful 
and proper; (3) whether in the case given the censure was really 
incurred by the two priests, and to what are they bound. 

I. Censure is a canonical punishment which has for its purpose 
the prevention of sin. It is inflicted, therefore, only after the infrac- 

240 



INCURRING ECCLESIASTICAL CENSURE. 241 

tion of some law. It follows, therefore, that any cause which 
excuses from the transgression of a law will likewise exempt one 
from the annexed censure. There are times when grave fear of evil 
will exempt one from the observation of some law; at other times 
neither the fear of a graver evil nor the fear of the gravest evil will 
destroy the obligation of the law. 

However, it must be clearly understood that for the incurring of 
censure sin and contempt of the censure are required. Hence, if 
there is question of some precept of the natural law from the ob- 
servance of which grave fear does not excuse, yet the presence of 
fear may preserve one from incurring a censure that is annexed to 
the sin. Owing to the presence of fear we may in truth say that the 
law is broken rather from the weakness of nature than from any 
malice or contempt of the church threatening the censure. And, 
therefore, says St. Alphonsus (I. 7, n. 46) : "He who through fear 
commits murder, which is forbidden under pain of censure, sins 
truly, but does not incur censure, because he does not sin against 
the right of the Church, against whose authority no special contempt 
is shown." The censure would be incurred, however, even if the 
gravest fear were present, when the observation of the law is made 
necessary by public good, or when the fear would lead directly to 
contempt of religion or of the authority of the Church (St. Alph. 
I.e.). 

2. The counsel given to Caius, to remove his own name from the 
letters in question, was right and proper. Had he done so he would 
have taken away all cause of fear of loss of reputation, and the 
speculative and practical doctrine contained in the letters would 
have been available in the cause of the beatification of their writer. 
It is clear from this that the second part of the advice given to 
Caius, viz., to burn the letters, was improper and unjust. For, as 



242 THE CASUIST. 

said above, by the removal of the name contained in the letters, all 
danger of loss of reputation was irrevocably prevented, and with it 
was taken away all grave inconvenience. Caius therefore acted 
unlawfully in burning the letters. 

3. The priest who advised Caius in his anxiety did not incur the 
penalty of excommunication, even though he did not make known 
to the proper authorities the existence of the letters held by Caius. 
For he knew of these letters only because his counsel was sought in 
reference to them. Therefore he was bound by the strictest obliga- 
tion to secrecy. Now while he was thus bound the letters were de- 
stroyed, and consequently he was not then bound to broach the 
matter to the bishop. 

Caius, on the other hand, objectively speaking, incurred the 
penalty of excommunication. The reason of this is plain. He had 
in his possession the manuscript sought after by the bishop, and 
could have transferred it to his ordinary without detriment to him- 
self or others. Consideration must be given, nevertheless, to the 
fact that Caius acted in good faith, and by reason of this ignorance 
he was practically excused from the penalty of his fault. Strictly 
speaking he did not commit sin, and where there is no sin there is 
no excommunication. He is, moreover, not bound to anything 
further, since the letters are no longer in existence. Certainly he is 
not bound to reveal his part in the affair; for such a revelation 
would be productive of no good and would endanger his good name. 



LV. GODPARENTS IN BAPTISM. 

A parish priest, whom we will call Father WiUiam, had occasion 
to baptize the child of two strangers, who were spending a few weeks 
in his parish, during the last summer. Being strangers, they did not 
know any one whom they might ask to act as sponsors for their child, 
and therefore brought the child to the church to be baptized, without 
any godparent. The priest had just finished Mass, and having two 
altar-boys present, he made them stand for the child. The child 
was a girl baby. After the ceremony was completed, Father Wil- 
liam began to think that perhaps he should have allowed only one 
of the altar-boys to stand for the baby, and that as there were some 
nuns in the church at the time, he would have been more within the 
law, had he called one of the nuns to act as godmother to the child. 
In looking the matter up afterward, he discovered, what was news 
to him, that unless the sponsors touched the child physically while 
it was being baptized, they contracted no relationship to the child, 
and as he never required godfathers to touch the child, physically, 
when he baptized, he concluded that he had baptized this child with- 
out its having any sponsors, and therefore did not enter the altar- 
boys' names in the Baptismal records, as sponsors. He now refers 
the following questions to the Homiletic Monthly for a solution : 

1 . May two persons of the same sex stand for a child ? 

2. May nuns stand for a child ? 

3. Is it required that sponsors touch the child physically, while 
it is being baptized, in order to contract spiritual relationship? 

4. In the case of converts from the Episcopal church, may two 
godfathers be allowed to stand for a male child, or two godmothers 
for a female child, or may the parents themselves ever be permitted 
to stand for their own child? 

243 



244 ^^^ CASUIST. 

5. Finally, in a very special case, may a Catholic stand sponsor 
for a non-Catholic child, baptized by a non-Catholic minister of 
the Gospel? 

Answer. — The custom of having certain persons act as sponsors 
or godparents in Baptism, goes back to the earliest ages of the 
Church. Reference is found made to them by the Fathers and early 
writers such as St. Augustine, St. Basil, Tertullian, etc. The law at 
present in the Church regarding godparents dates from the Council 
of Trent, and it is that law that must guide us in this matter of god- 
parents. 

According to the Council of Trent (S. 24) at least one godparent, 
either male or female, and not more than two, must stand for a child 
in solemn Baptism, under pain of mortal sin. But it is not allowed 
to admit two male sponsors or two female sponsors to stand for the 
same child, neither is it permitted to the parents of the child to act as 
sponsors for it. The words of the Council of Trent are : 

"Sancta Synodus statuit, ut unus tantum sive vir, sive mulier, 
juxta sacrorum canonum statuta, vel ad summum unus et una bap- 
tisatum de Baptismo suscipiant, inter quos, et haptizatum ipsum, 
et illius patrem et matrem, nee non inter haptizantem et haptizatum, 
baptizatique patrem ac matrem tantum spiritualis cognatio contra- 
hatur" (Sess. 24, cap. 2). 

And the words of the Roman Ritual are : Patrinus unus tantum, 
sive vir sive mulier, vel ad summum unus et una adhibeantur, ex 
decreto Con. Trid.; sed simul non admittantur duo viri, aut duae 
mulieres, neque baptizandi pater aut mater (de Patrinis, n. 23). 

Therefore according to the Council of Trent only one, or at most 
two, a male and a female should be admitted to act as sponsors, and 
according to the opinion of St. Alphonsus Liguori, the pastor would 
be guilty of mortal sin, if he admitted a greater number. When 



GODPARENTS IN BAPTISM. 245 

there are two sponsors, they should be of different sexes, not two 
males, nor two females. St. Alphonsus goes so far as to affirm that 
it would be a mortal sin to admit two males or two females, if 
they be of a different sex from that of the child, that is, two male 
sponsors for a female child, or two female sponsors for a male 
child; but the holy doctor holds that to admit two sponsors of the 
same sex, and of the same sex as the child, would be only a venial 
sin (Lib. vi., n. 155). 

Godparents may not be more than two in number, in order that 
the spiritual relationship arising from Baptism, may not be multi- 
pHed. And it is for this same reason that St. Liguori believes it to 
be a grievous sin to allow, v. g., two godfathers to stand for a girl, 
because spiritual relationship is thereby needlessly extended, and 
diriment impediments to marriage multiplied without cause. In 
private Baptism, that is, where the ceremonies of the Sacrament are 
omitted, there is no obligation to have any godparents. 

2. The second question proposed to us is this : May nuns act as 
godmothers ? 

The Roman Ritual, de Bapt., n. 26,, says : Praeterea ad hoc 
(munus patrini) etiam admitti non dehent Monachi, vel Sancti- 
moniales, neque alii cujusvis Ordinis Regulares a saeculo segre- 
gati. This is generally interpreted to mean religious orders in 
which solemn vows are taken. It includes, however, also all reli- 
gious congregations having simple vows, if their constitutions for- 
bid the acceptance of this ofifice. There are very few, if any, re- 
ligious congregations, whose constitutions do not forbid their mem- 
bers to act as godparents, and to do so against the rules of the order, 
would be a sin against the vow of obedience. 

3. To the third question we answer, that it is necessary to touch 
tlie child physically, while it is being baptized, in order to contract 



246 THE CASUIST. 

the spiritual relationship. Ut in ipso Baptismo, per se vel per pro- 
curatorem physice teneat aut tangat infantem, dum haptisatur, 
aut statim levet aut suscipiat de sacro fonte, aut de manibus haptiz- 
antis (St. Lig. Lib. vi., n. 146). It is not necessary that the godparent 
touch the child's body immediately, that is, the child's flesh, but it suf- 
fices if the godparent touch the child's clothes. Mere witnessing the 
Baptism, or mere assistance at it, even though one have the intention 
of acting as godparent, is not sufficient to contract spiritual re- 
lationship. As Baptism is a new birth, the godparents must not 
merely witness it, but they must take part in it. In case of a sub- 
sequent marriage between the godparent and godchild, if there 
were doubt as to whether the godparent physically touched the child 
in Baptism, a dispensation would be necessary super impedimento 
cognationis spiritualis, ad cautelam. 

4. In the Book of Common Prayer of the Protestant Episcopal 
Church of the United States, there is this article : "There shall be 
for every male child to be baptized, when they can be had, two 
godfathers and one godmother ; and for every female, one godfather 
and two godmothers ; and parents shall be admitted as sponsors, 
when it is desired." 

If more than two godparents, namely, one man and one woman, 
be designated by the parents of the child to stand for the child, 
whether they be Catholics or non-Catholics, they must be prevented 
by the priest, from standing. If they are Catholics, this will be 
very simple as a rule. If they be non-Catholics, it may be practically 
impossible to prevent them from acting as sponsors, without serious 
inconvenience. In this case they may be allowed to witness the 
ceremony, without having them touch the child physically, when it 
is being baptized. If you can not, without giving ofifense, keep them 
from touching the child or holding it, while it is being baptized, 



GODPARENTS IN BAPTISM. 247 

you may allow them even this privilege ; but in no case are they 
to be considered the sponsors of the child. The law forbidding more 
than one male and one female sponsor, and the law forbidding non- 
Catholics to act as sponsors, are church-laws and do not oblige cum 
gravi incommodo. 

This is the general opinion of modern theologians. Quodsi 
hereticus a parentibus jam designatus, absque magna offensione 
removeri non posset, admitti posset tamquam testis, quin admonere- 
tur de tangendo infante in actu ablutionis. Quin etiam si absque 
gravi malo impediri non possit, quominus infantem tangat, ad evi- 
tandum tantum malum, hereticus admitti posset, cum res non sit 
intrinsecus mala (Noldin, III., n. 79. Lehmkuhl, Casus Consc. II., 
n. 84). 

5. It is never allowed that a Catholic stand for a non-Catholic 
child, in a non-Catholic Baptism, The Holy Office has expressly 
forbidden it : 

Absolute non licere, nee per se, nee per alios, fungi officio patrini 
in baptismis, quae hereticorum Uliis ab hereticus ministrantur (S. 
Officium, May loth, 1770). 

Some theologians, with St. Alphonsus, thought that a Catholic 
might act as sponsor in a non-Catholic Baptism, when such action 
on the part of the Catholic could in no manner be looked upon as 
an approval of a non-Catholic rite. They thought that there was 
always present some hope of bringing the child up in the faith, and 
that this was a sufficient justification for taking part in a non- 
Catholic ceremony. But, apart from the prohibition of participating 
in non-Catholic rites, it is never allowed to ask what another can not 
grant without sin; but the godparent asks of the non-Catholic 
minister, what the minister can not confer without sin, namely. 
Baptism (Lehmkuhl, II., 71). 



LVI. RIGHT OF A BISHOP TO SUSPEND A PRIEST 
WITHOUT TRIAL. 

Titius, a priest, exercising the functions of the sacred ministry in 
a certain diocese, is "reported" to his bishop for indulging too freely 
in intoxicating drink — in fact, for being well under its influence on 
several occasions. Without being granted the benefit of a canonical 
trial, or even a thorough investigation of the charges preferred 
against him, the accused Titius is suspended by his bishop and or- 
dered to repair to a monastery and remain there till he (the bishop) 
sees fit to recall him. Under protest Titius submits, complies with 
the bishop's command, and spends a considerable time in a monas- 
tery, where he is obliged to defray his own expenses. 

Now it is asked: 

1. Had the bishop a right to suspend Titius without a previous 
canonical trial or thorough investigation of the charges brought 
against him? 

2. Had the bishop a right to order Titius to a monastery without 
previous trial or canonical procedure? 

3. Had the bishop a right to compel Titius to defray his own 
expenses while in the monastery ? 

Solution. — I. Had the bishop a right to suspend Titius without 
canonical trial or other legal formality ? 

Prior to the Council of Trent no ecclesiastic could be punished by 
his bishop, v. g., suspended from the exercise of his orders, except 
upon a regular or formal criminal trial as prescribed by the sacred 
canons. This was the general law of the Catholic Church up to the 
time of the Council of Trent, and admitted of no exception what- 
ever, save only in the case of murder, heresy, and in the case of 

248 



RIGHT OF A BISHOP TO SUSPEND A PRIEST. 249 

regulars, who for secret crimes might be restrained by their supe- 
riors from receiving higher orders even without trial. Stremler 
(Eccl. Punish, p. 310) says: Before the Council of Trent, a bishop 
could not restrain any unworthy candidate from holy orders, nor 
punish a delinquent ecclesiastic, except upon a formal or an ordi- 
nary criminal trial, as established by the law of the Church and con- 
tained in the decretals. No crime could be punished, except when 
the delinquent had been judicially convicted, in a canonical trial 
conducted with the formalities established by canon law for pro- 
ceedings in criminal causes." 

The Council of Trent, in its 14th session, chapter I, de Reform,, 
introduced in this respect, a complete and radical change in the ex- 
isting discipline of the Church. For in its 14th session the Coun- 
cil enacted that in certain cases bishops could inflict punishment upon 
their delinquent ecclesiastics without previous trial or judicial for- 
mality of any kind whatever. By virtue of this power the bishops 
may in certain cases condemn an ecclesiastic, without giving him 
an opportunity to defend himself, ex causis nullo judicio prohatis, 
sed in sua (episcopi) conscientia perpensis. . . . Ad hanc suspensio- 
nem imponendam nee formae judiciales, nee canonicae admonitiones 
reqiiiruntur (Instr. Congr. de Prop. Fide, 1884). This power of the 
bishop to suspend his priest without canonical trial or legal proced- 
ure, but simply for reasons known to him extrajudicially, and suf- 
ficient for his own conscience, is known in Canon Law as the power 
to suspend a priest, or other cleric in major orders, ex informata con- 
scientia. It was conferred on the bishops by the Council of Trent, to 
safeguard the dignity of the priesthood as well as the spiritual inter- 
ests of the faithful, and to eradicate evils that could not be reached in 
any other way. 

The bishop is not required to give any reasons to the priest whom 



250 



THE CASUIST. 



he suspends, but he is required to give reasons to Rome, if appeal is 
taken to Rome. There lies no appeal from the suspension ex in- 
formata conscientia. That is, if the suspended priest takes an ap- 
peal to Rome, he does not thereby cause a suspension of the censure 
until a final decision is given by Rome. The only recourse for a 
priest in these circumstances is to observe the articles of his sus- 
pension, and appeal extrajudicially to the Holy See. A decreto 
suspensionis ex informata conscientia non datur appellatio, sed 
semper patet recursus extrajudicialis ad S. Sedem, suspensione in- 
terim in vigor e permanent e (Instr. Congr. de Prop. Fide, n. v. 11 
and 12). 

There may exist among some persons a persuasion that this power 
of the bishops to suspend ecclesiastics without due process of law, 
or ex informata conscientia, was somehow abrogated for the United 
States by the III. PI. Council of Baltimore. Such persuasion is 
altogether unfounded. The power of a bishop to suspend his priest 
ex informata conscientia, in the United States, is reaffirmed by the 
Council of Baltimore and by the instruction issued by the S. C. 
de Prop. Fide, to the American bishops, October 20, 1884. 

Thus the S. C. de Prop. Fide expressly says : 

Quod vero pertinet ad remedia repressiva seu poenas animad- 
vertant Ordinarii in sno plena vigore manere remedium extra- 
judiciale, ex informata conscientia, pro occultis reatibus a S. Concilia 
Tridentino constitutum, sess. 14 chap. i. de Reform. 

(Appendix, III. PI. Coun. Bait.) 

Titius was guilty of crimen occultum. He was well under the 
influence of strong drink on several occasions. He is liable to give, 
if he has not already given, grave scandal. He is already sacrificing 
the dignity of the priesthood and jeopardizing the spiritual interests 
of the faithful. The bishop is perfectly within his rights when he 



RIGHT OF A BISHOP TO SUSPEND A PRIEST. 251 

suspends Titius ex informata conscientia, without previous warn- 
ing or canonical trial or other legal formality. Justam ac legitimam 
catisam suspensioni ex informata conscientia, praebet crimen seu 
culpa a suspenso commissa. (Instr. Cum Magnopere, Oct. 20, 1884.) 

The suspension may not be inflicted, ex informata conscientia, in 
perpetuum, but only for a certain period of time, or until the delin- 
quent manifests sufficient signs of amendment. 

Stremler (p. 329) says that no general rule can be laid down re- 
garding the duration of the suspension; but he thinks that two or 
three months are a long time and that the suspension should rarely 
last longer. Only very exceptional circumstances would justify a 
suspension to last six months. The suspension ceases without other 
formality at the death of the bishop who inflicts it, but whether it 
also ceases in the case of the transfer or resignation or removal of 
the bishop imposing it, Fr. Smith says, is not so certain. 

2. We proceed now to the discussion of the second question, 
namely : Had the bishop a right to order Titius to a monastery to do 
penance without giving him the benefit of a canonical trial? 

In the Instruction Cum Magnopere of the Propaganda to the 
bishops of the United States, October 20, 1884, concerning the man- 
ner of proceeding in criminal and disciplinary causes of ecclesiastics, 
we read : 

I. The Ordinary is bound, by virtue of his pastoral ofiice, dili- 
gently to look after the discipline and correction of ecclesiastics. 
Hence he should watch assiduously over their conduct, and make 
wise use of the remedies established by the canons, either for the 
purpose of preventing or doing away with abuses which sometimes 
creep in among the clergy. 

II. These remedies are of two kinds : some are preventive, others 
repressive. The former have for their object the prevention of evils, 



252 



THE CASUIST. 



the removing of causes of scandal, and the avoiding of voluntary 
proximate occasions of sin. The latter are established for the pur- 
pose of recalling the delinquent to the path of duty, etc. 

III. The application of these remedies is left to the conscientious 
discretion of the Ordinary, provided, etc, 

IV. The following are the chief preventive remedies : spiritual ex- 
ercises, etc. 

V. Before they are imposed upon any one, the facts calling for 
them must be verified in a summary manner, etc. 

Now in the case of Titius, the bishop acted within the provisions 
of this Instruction in applying a preventive remedy, namely, in 
commanding Titius to make a retreat in a monastery. 

"A bishop, therefore, has the right to impose a special spiritual re- 
treat upon an ecclesiastic who is the occasion of scandal, or who re- 
mains voluntarily in the proximate occasion of sin, and who conse- 
quently, though not yet guilty of crime, follows a slippery road 
leading to spiritual ruin." (Smith, Eccl. Law, n. 1746.) 

As space will not allow us to treat of this more fully, we refer our 
readers to Smith, Elements of Eccl. Law, and New Procedure, and 
Zitelli, Apparatus Jur. Eccl., etc. 

3. Did the bishop act within his power when he obliged Titius to 
defray his expenses while in the monastery? 

We take for granted that Titius was ordained ad titulum mis- 
sionis. 

Some readers may be under the impression that the Third Plenary 
Council of Baltimore changed the status of priests ordained ad 
titulum missionis, with regard to removal, etc. The council did 
not change the status of the ordinary missionary priest. It did cre- 
ate irremovable rectors and made special laws governing their re- 
moval, but it reaffirmed the laws of the Second Plenary Council of 



RIGHT OF A BISHOP TO SUSPEND A PRIEST. 253 

Baltimore, regarding all other priests ordained ad titulum mis- 
sionis. In the Instruction of the Propaganda to the American bishops 
issued in 1884, the title of which is : "De modo servando in cog- 
noscendis et definiendis causis criminalibus et disciplinaribus cleri- 
corum in Foederatis Statibus Americae Septentrionalis," the laws 
of the Second Plenary Council of Baltimore, concerning mis- 
sionary priests, with the exception of the newly created irremovable 
rectors, are expressly stated to be still in force. 

Concilii Plenarii Baltimorensis II deer eta, n. 125, quoad naturam 
missionum, et nn. yy et 108 quoad juridicos effectus remotionis mis- 
sionariorum ab officio, nullatenus innovata seu infirmata intelligun- 
tur, salvis us quae recentius de parochis seu rectoribus inamovibili- 
bus constituta sunt (cf. Appendix, III. PI. Con. Bait., p. 292, 
XLV). 

If we refer now to the II. PI. Con. Bait., n. 125, we read : 

Parochialis juris, paroeciae, et parochi nomina usurpando, nul- 
latenus intendimus ecclesiae cujuslibet rectori jus, ut aiunt, inamovi- 
BiLiTATis tribuere; aut potestatem illam tollere seu ullo modo immin- 
uere, quam ex recepta in his provinciis disciplina habet episcopus 
quemvis sacerdotem munere privandi aut alio transferendi. 

And n. yy of the same Council we are told that, as was decreed in 
the Provincial Council of St. Louis, in the year 1855, and confirmed 
by the Holy See : Sacerdotes quibus per Ordinarii sententiam sacer- 
dotii exercitium interdictum fuerit, nullum jus habent ad susten- 
tationem ab eo petendam, cum ipsi se sua culpa missionibus operam 
navandi incapaces reddiderint. 

The American bishops proposed the following Dubium to the 
Congr. of the Propaganda : 

Utrum et quomodo declarandum sit, sacerdotes titulo missionis 
ordinatos, qui se indignos rediderunt sacri ministerii exercendi, hoc 



254 



THE CASUIST. 



titiilo privari; neque Ordinarium teneri ad sustentationem illis prae- 
hendam. 

The Sacred Congr. answered on Feb. 4, 1873: 

In casu, proiit exponitur praevia declaratione ejus modi sacerdoti 
ah episcopo facienda, et quamdiu praedictus sacerdos in sua prava 
vivendi consuetudine perseveret, nullum exhihens sincerae respiscen- 
fiae signum, episcopum non teneri ad sustentationem illi praeben- 
dam. (Zitelli, Apparatus Jur. Eccl. de tit. Ord., p. 352.) 

Strictly speaking, therefore, the bishop had a right to require of 
Titius that he defray his own expenses while in the monastery, since 
Titius, by his own fault, forfeited his living, his missionary title ad 
honestam sustentationem. If, however, Titius have no means to de- 
fray his own expenses, the bishop will provide means ad neces- 
SARiAM sustentationem, that is, the bishop will provide what is neces- 
sary for life, but not what would make life comfortable and pleasant. 

If the bishop knows that Titius has means of his own to procure 
the necessaries of life, then the bishop is not obliged to defray any 
of Titius' expenses while Titius is accomplishing his penance. 
Stremler says : 

"For the rest, dismissal from benefice always leaves to the eccle- 
siastic who is dismissed the right to the means of subsistence. The 
ecclesiastical judge should assign to the cleric who is deprived of 
his benefice, and who has no other means of subsistence, an alimen- 
tary pension, or keep him in a monastery, according to the gravity of 
his offense, and not allow him to tramp about, deprived of all means 
of living. For, say the Sacred Canons : Paupertas cogit ad turpia. 



LVII. THE USE OF MORPHINE.* 

Question. How is the use of morphine, or the morphine habit, 
to be considered from the moral standpoint ? 

Answer, i. The use of morphine can not be absolutely prohibited 
as contrary to morals, when it is merely a question of allaying ner- 
vous excitement, or of alleviating pain. But in view of the imminent 
danger of its misuse and the bad effects it is apt to produce, mor- 
phine preparations should be used only by direction of a conscientious 
physician. 

2. The excessive habitual use of morphine is without doubt sinful. 
Its excessive use will become grievously sinful, even a mortal sin, in 
cases where it works serious injury to bodily health, or where, on 
account of the pleasure and comfort it affords, a complete intoxica- 
tion, temporary deprivation of the use of reason is thus produced. 
The latter excess would render the solitary case a mortal sin ; in the 
habitual excessive use the mortal guilt is found in the consciousness 
of the injury which the continuous consumption of the drug will 
work, so that in the case of a determined breaking off of the habit, 
an occasional temporary relapse into the use may be dealt with 
leniently. 

3. If the use of the drug does not reach the degrees mentioned 
under No. 2, then the excessive use, although sinful, is not exactly 
a mortal sin. 

4. With those dangerously sick, when death is approaching, the 
use of morphine for the purpose of stupefaction, even if done to alle- 
viate pain, can not be morally justified, unless it is intended to pro- 
duce refreshing sleep or as an anesthetic in a surgical operation. 
Otherwise, to deprive the patient of consciousness so shortly before 

*By A. Lehmkuhl, SJ. 

255 



256 THE CASUIST. 

death must be looked upon as an ordinary shortening of life, which 
I am not obliged to oppose, if some one undertakes to do it in good 
faith in order to prevent greater evils, but in which I should not 
be allowed to consent or assist. 



LVIII. THE VOW TO ENTER AN ORDER * 

Paul, a college-graduate, has taken a vow, from religious motives, 
to enter an Order. In fulfilment of his vow he entered an approved 
congregation, and after passing a few weeks in the novitiate he 
comes to the conclusion that his health will not stand the strain of the 
many spiritual exercises and tasks prescribed in this community, and 
he leaves of his own accord. 

Question: Has Paul satisfied the obligations of his vow? 

A vow in general is a particular law which the votary imposes upon 
himself, for the glory of God, and it must for this reason be inter- 
preted according to the spirit that prevailed in the taking of the 
vow. There ensues for Paul, therefore, the following rules govern- 
ing the fulfilling of his vow. 

1. If he has not expressly intended to enter an Order sensu strict o 
with solemn vows, then his vow is fulfilled by entering an approved 
congregation with simple vows, so the Doctors universally teach, and 
in that case the votum ingrediendi religionem does not belong to 
the vows reserved by the Pope. 

2. With regard to the time the vow is to be fulfilled soon if the 
obligation is present and the opportunity given, and this applies espe- 
cially to personal vows, among which belongs the vow of entering 
the religious state. Hence St. Alphonsus says (Homo Apostolicus) : 
"If the vow is perpetual, such as entering the religious life, then the 
theologians teach that one sins grievously if the fulfilment is delayed 
more than six months without just cause," and in his Moral The- 
ology (lib. Ill n. 221) he adds: Consentit etiam Sporer si vovens 
excedat aetatem 40 annorum. Censent tanien cum Tamburino, excu- 
sari a mortali juvenem 15 vel 16 annorum, qui differt per tres veii 

♦By J.. Schwienbacher, CSS.R 

257 



258 THE CASUIST. 

quatuor annos: quia (ut dicunt) hoc tempus videtur parva materia 
respectu ad servitium totius vitae. Sed huic non omnino acquiesco, 
nisi adsit jiista causa dilationis. Such causae justae are there given 
by way of example. 

3. Concerning our chief question, Paul's leaving the order, the 
vow to enter an Order imposes the obligation, under penalty of 
grievous sin, of employing a moral diligence (not an extraordinary 
or supreme effort) to obtain admission into an Order, in which at 
least the essential rules are observed, to enter within due time, to per- 
severe faithfully in the same, and when the vocation has been proved 
to become professed in the Order. This general rule finds in our 
case its practical application in the following manner : 

I. Paul is not allowed to enter an Order, in which the discipline 
"quoad observantias principaliores" has become lax, ( St. Alph : lib. 
IV, n. 72.) 

II. According to the intention of the votary St. Alphonsus dis- 
tinguishes in the vow before us three cases, to which correspond 
different standards of obligation. (Comp. Homo Apost. v, 34.) 

In the first case the votary merely obliges himself to an earnest 
trial of the religious life. In this case the difficulties confronting 
Paul excuse his action and should they cease later on, he will not be 
obliged to return because he has fulfilled his vow by making an 
earnest trial. 

Of the second case the Saint says: "If any one vows to make 
profession, he must set about doing so even under great difficulties 
unless the religious life becomes absolutely unbearable for him." 

The third case, which is to be supposed in our vow unless the first 
or second are positively ascertained, is according to St. Alphonsus as 
follows : "If a vow is simply made to enter on Order, one is obliged 
to enter and remain therein, and it would be a grievous sin to 



THE VOW TO ENTER AN ORDER. 259 

leave again, without just cause. It would be considered a just cause 
for leaving, if one found a manner of living which exceeded one's 
strength, or if one had to suffer great and prolonged sadness." 
Thus the Saint. 

Now this just cause for leaving is present in the difficulties which 
Paul discovered, provided they were really insurmountable for Paul, 
and for this reason he is not blameworthy, especially if, to avoid 
self-deception, he has sought the advice of an experienced con- 
fessor. With justice Gopfert, however, adds to this the provision: 
"Should the just cause cease to exist, one must return to the order," 
for in such case the fulfilment of the vow would no longer be mor- 
ally impossible. The same authority, however, remarks that "the 
vow is always subject to the condition that the Superior must accept 
and retain the votary." 

III. If Paul in his vow expressly intended a certain Order, and if 
the fulfilment of this vow is morally impossible in regard to this 
order, he is of course not obliged to enter any other Order. If, on 
the contrary, he did not intend any Order in specie, he is, if after 
prudent counsel these difficulties are not to be looked for in some 
other Order with discipline, obliged to seek admission there, but 
after three or four unsuccessful trials, he may safely remain in the 
world, as Marc, n, 2140 (2) in a similar case justly remarks, because 
in such case the fulfilment of the vow may be looked upon as im- 
possible. 

IV. In conclusion the following rule may be quoted, found espe- 
cially in early authorities : "It should be observed that the one who 
has vowed to enter an Order and has failed to gain admission in 
the communities of his province, is not obliged to seek admission 
away from his country. If a woman she is not obliged to leave her 
native place if there are convents there" (Homo Apost. v. 34). 



26o THE CASUIST. 

The reason adduced is that as a rule it can not be presumed that 
the votary intended to bind himself for such a sacrifice. Lehmkuhl 
comments on this in view of our modern circumstances: "Quod 
autem antiquitus dixerunt, pro nostri temporis circumstantiis non 
universim admiserim, nisi peculiares exstiterint difficultates." (Casus 
Consc. vi, n. 294.) 



LIX. RESTITUTION ON ACCOUNT OF INCENDIARISM. 

A fire broke out in a village which partly destroyed a certain house 
of Mr. N. N. The owner was insured, but nevertheless suffered a 
loss of about $4,000, Vv^hich was all the harder for him to bear, as 
he. after toiling and laboring throughout the entire year, at its end 
considered himself fortunate if he was not in debt, there being no 
capital or savings. How the fire started, whether caused by negli- 
gence or by some malicious hand, could not be ascertained. Some 
tinie had elapsed when there came to the confessional of Father 
Sempronius a woman who confessed having been the incendiary, in 
about this fashion : "Your Reverence, I was the incendiary ! I set 
fire to the property, and did it out of revenge because the farmer 
had given me notice to leave. I regretted it immediately, and even 
attempted to put out the flames, but it was too late. I know that I 
have committed a great sin. It gives me no peace, day or night, and 
I am ready and willing to make restitution as far as lies in my power. 
Of course I can not make up the loss entirely, as I am only a poor 
servant-girl. I have saved so far $400, this I will relinquish no mat- 
ter how hard it is to do so. But, Reverend Father ! what shall I have 
to do with my future savings? I can save yearly eighty or ninety 
dollars. If I could keep this I should have a prospect of marrying. 
If, however, I must sacrifice all my earnings, I can never think of 
marrying, and shall eventually become a burden upon the com- 
munity. Still I know that I have sinned grievously, and will abide by 
what your Reverence says, if only I may clear my conscience of this 
sin." 

What answer will Fr. Sempronius have to give to this penitent, 
whom we will call Pelagia, so that the strict requirements of justice 

261 



262 THE CASUIST. 

and restitution may be complied with, and also that a too difficult 
burden may not be laid upon Pelagia, which, though lived up to in her 
present grievous remorse, would later be found impossible to bear? 

The answer is really very simple. It is evident that Pelagia, sim- 
ply because she was after her unfortunate deed immediately seized 
with contrition, and because of the fact that she sought to extinguish 
the fire, is not excused from restitution. At the moment of causing 
the harm, she was conscious of the injurious consequences of her 
action, and hence her act must be considered as morally voluntaria 
and therefore grievously sinful. As the same was also causa eificax 
damni, all the requisites for the obligation of restitution are present. 
But according to the moralists the danmificans is wholly or partially 
excused from restitution when, and for as long as there would arise 
for him a notabiliter greater damnum than that which the damniii- 
catus himself has suffered. (Alph. IV, n. 697.) 

Let us examine if this is not Pelagia's case. All she has with 
which to make restitution are the savings from her wages. As re- 
gards the $400, which she has laid aside, one could not oblige 
Pelagia to part with the entire sum at once, for in case of emergency 
she would be left wholly without means. How about her future 
savings? Will she be obliged to give them all up for restitution? 
First of all Pelagia is entitled, ex jure naturae, to lay aside so much 
of her savings, that in her old age, in case of inability to work or 
other impediments, she may be able to support herself. No one can 
or should expect of her to deprive herself of the most necessary 
means in order to make restitution, for otherwise she would become 
a burden to the community and lead a miserable existence. That 
would be nimis durum! And why, in conclusion, should a thna 
party — namely, the community, be made to contribute toward a res- 
titution which is strictly a matter ad personam for Pelagia? In 



RESTITUTION ON ACCOUNT OF INCENDIARISM. 263 

examining to what extent Pelagia should apply her savings in 
making restitution we must furthermore take into consideration the 
following circumstance. If Pelagia can not retain her savings, then 
she will have little hope ipso facto of winning the security and pro- 
tection of wedlock; for if she has not at least some money it will 
be a hard matter for her to find some one to marry her. In her 
savings alone she has a possibility of entering the married state such 
as she desires. Though the duty of making restitution will not 
cease for Pelagia in the married state, she would presumably be 
able to do little or nothing toward making good the harm she has 
caused. The requirements of household and motherhood would 
probably demand the little that she might be able to earn herself. 
Must she on this account renounce all idea of marrying? Is not 
Pelagia entitled ex jure naturae in the event of a chance offering 
itself? Even the ecclesiastical marriage laws know of no prohibition 
in our case. To remain unmarried for life, a state for which she 
had neither inclination nor vocation, would be expecting something 
akin to heroism on Pelagia's part, and a renunciation of the married 
state would without doubt be a far greater incommodum than the 
damnum to the injured party if in the married state she is unable 
to make further restitution : besides, there would be the dangers to 
her soul if unwillingly she were made to lead a life of celibacy. There 
would therefore be a damnum altioris ordinis present in consequence 
of which Pelagia would even be in conscience bound to enter into 
matrimony, if there was a possibility of her doing so. 

Hence there apply in our case the principles "Nemo tenetur resti- 
tuere cum suo valde majore detrimento, quam sit creditoris com- 
modum" (Kutschker: "Doctrine of Restitution"), and " Bonum in- 
ferioris ordinis restituendem nan est cum detrimento boni superioris 
aeque gravis" (ibidem), inasmuch namely as matrimonium belongs to 



264 THE CASUIST. 

a higher order of good than the mere material bomim which the 
injured farmer would receive if the persona ad compensationem obli- 
gata did not enter the married state. If therefore the obligation of 
restitution can not be insisted upon to the extent that Pelagia must 
on that account renounce a natural right, such as the married state, 
then one must also allow her the means necessary to obtain this 
natural right. In other words, Pelagia can not be bound to devote 
her future savings to restitution to such an extent that because of it 
she can not hope for a possible matrimonial alliance. Nay, more, if 
one reflects how trifling her savings are in reality — what are eighty 
or ninety dollars a year? provided of course she avoids all unneces- 
sary outlay — one could ask her at most to give up a trifling part, or 
more probably, none whatever, from these small savings so long, at 
least, as there is a probability of her getting married. Should Pelagia 
however not enter the married state, she would only be called upon, 
as we have already mentioned, to deprive herself of so much of her 
savings, past and future, that she will not be left entirely without 
means in her old age, or in the event of inability to work. If she 
should possibly have poor parents to support besides herself, then, 
of course, this natural duty of filial affection would take the place of 
the duty of making restitution. In the event of Pelagia's ever be- 
coming possessed of considerable means, by inheritance, for in- 
stance, she will, of course, be obliged to use such moneys for restitu- 
tion in so far at least as she does not necessarily require them for her 
own needs. 



LX. IN REBUILDING A PARISH CHURCH MAY THE 
NAME BE CHANGED ?* 

In a certain parish, composed chiefly of working-people, the 
church was found to be too small, and a new building was impera- 
tively necesssary. From many quarters the wish was expressed that 
the new church should be dedicated to St. Joseph, patron of the 
working classes, particularly because the patron saint of the church 
is a saint little known. May the title of this church be changed ? 

Ever since the time of the apostles every church receives a name, 
as does man in Holy Baptism. It is self-evident that the patron of 
a place or of a country has nothing to do with the title of a church. 

Churches may be dedicated to the Most Holy Trinity ; to Christ ; 
or to one of the mysteries in His life, as, for instance, the Transfigur- 
ation ; the Blessed Virgin and events from her life, such as the An- 
nunciation; the Angels and Saints. A church can not be dedicated 
without special permission from Rome to a servant of God only de- 
clared Blessed or Venerable. Generally a church has only one patron 
Saint, but there are numerous cases where a church is dedicated to 
several Saints, as Cosmas and Damian, and even when their feasts are 
celebrated on different days, as Saints John and Francis. 

Rome adheres to the principle that the title or name of the church 
should not be changed lightly. It would indeed hurt the Christian 
feeling, if without any ado a patron saint, after having been regarded 
for centuries perhaps as the intercessor of a parish, should be 
suddenly deposed. The Apostolic See has nevertheless regard for 
the wishes of the people by consenting to the addition of a second 
name, or patron, to the old one. 



''By A. Pachinger. 

265 



266 THE CASUiyi . 

Gasparri (de Euch. i, 93) writes: "Titulus ecclesiae in genere 
mutari non debet, id est neque alius addi, neque aliquis, si titulus 
multiplex est, supprimi neque alius substitui. Haec mutatio fieri 
potest, quando ecclesia diruta rursus extruitur, sed etiam hoc in casu 
maxime decet, ut idem titulus retineatur, et ad summum nevus adda- 
tur, ut praecepit S. R. C. 16 Jan., 1885." 

In the year 1843 the question was proposed in Rome : Utrum semel 
assignato titulari patrono alicui ecclesiae, liceat episcopo rationabili 
ex causa ilium in alium immutare; et quatenus negative, enixe effla- 
gitat episcopus, ut ex apostolico indulto haec sibi facultas in casu 
elargiatur. The answer was: ad 1. non lie ere: ad 2. pro gratia as- 
sumendi S. Annam in contitularem cum S. Andrea Apostolo. 

In Rome the question introduced at the beginning has been before 
decided that : The old title is to be retained, and a new one can be 
added to it. Gasparri introduces three such decisions (1. c. p. 92.) 
and summarizes the result in these words : 

"S. C. C. censuit, translata ecclesia parochiali in aliam recenter 
erectam, titulum antiquum esse retinendum et ad ecclesiani subra- 
gatam esse transfer endum, sed addi posse titulum secundum." 

Important is the observation of this famous canonist : "Quando ex 
facto S. Sedis novus titulus antiquo superadditus est, antiquus suas 
praerogativas non amittit, et omnes tituli habendi sunt aeque prin- 
cipales. Episcopus titido existenti alium addere, citra novam eccle- 
siae dedicationem, auctoritate propria non potest." 

In our case the pastor can therefore safely elect St. Joseph as 
contitularis, asking the Bishop, at the dedication of the new building, 
to add this new name to the old one. The previous patron saint must, 
however, be retained, and his feast day is to be observed as heretofore 
according to the rubrics ; the new one, now aeque principalis, will be 
treated by the parish priests in Breviary, and holy Mass, exactly the 



IN REBUILDING A CHURCH MAY NAME BE CHANGED? 267 

same as the old patron saint. "Si titular es Ecclesiae plures sunt, non 
per modum unius sed diznsim, omnium festa propriis diebus ceie- 
hranda sunt ritu indicate, dummodo sint omnes aeque principales" 
(1. c. 94.) 



LXI. MARRIAGE DISPENSATION IN CASE OF 
TEMPORARY VOWS.* 

The following case came up unexpectedly before Father Arcadius. 
A Monialis, whose temporary vows would have lasted about three 
months longer, and who, in order to marry, had secretly left the con- 
vent, applied to him for dispensation. Arcadius resolves that this 
is an impedimentum occultum; and makes application to the Peni- 
tentiary Apostolic, enclosing sixty dollars, and asking for a dispen- 
sation. No answer came. Then he telegraphs, prepaying the an- 
swer ; still no reply. 

What is to be done in such a case? The answer is briefly as fol- 
lows : 

1. Arcadius is in error. An impedimentum can be puhlicinn noto- 
rium, either notorietate facti (when the fact is known publicly) or 
notorietate juris — i. e. through a judicial decree, or of course also 
through an act amounting to the same, an act which may be called 
before the forum of the (spiritual) tribunal. The public act of 
a profession of vows (though simple) on entering an Order, is 
certainly an act of this kind. Arcadius has no privilege to interfere 
in a notorious impediment, either as confessor or as private adviser, 
because it belongs before the ecclesiastical court ; indeed, if not pre- 
vented by the seal of Confession, he was bound to report the case to 
the ecclesiastical authorities. 

2. Arcadius, in his proceeding in this case, made a second mis- 
take : He wrote to the Penitentiary Apostolic. This congregation 
grants marriage dispensations pro foro interno, and also pro foro 
externo, where the poor are concerned. And even in their case, when 



*By H. Rett, O.F.M. 

268 



MARRIAGE DISPENSATION AND TEMPORARY VOWS. 269 

it is a question of a public impediment, the applicant's full name must 
be given. Arcadius did not do so; which was the third mistake 
therefore. At any rate this kind of a dispensation (from religious 
vows) would seem a matter for the forum of the 6". Congr. Ep. et R. 

3. He enclosed money as fee in advance, a good deal more 
obviously than required, for answer and agentia, a fourth mistake. 
Rome never grants a dispensation if any payment is made in ad- 
vance and apparently with the intention of securing the dispensa- 
tion; nam: simoniam redolet! I recall a case where a religious, so 
as to be able to marry, wrote to Rome for a dispensation, and in- 
closed a sum equivalent to about fifty dollars in our money. The 
money was retained, of course (and properly so), but the answer 
came : Let the person apply once more for the dispensation, but not 
enclose any money ; then she will receive dispensation at once. 

4. The telegraph should not be used for the purpose of securing 
a dispensation for marriage, although it sometimes is done. 

The case here referred to was eventually disposed of in the follow- 
ing manner : It was reported to Rome expresso nomine, by the 
Bishop; who subsequently received power to dispense the applicant 
from her vows, after which there was nothing to prevent the mar- 
riage. A congnia poenitentia was to be imposed. As penance for 
the breaking of religious vows, that should have lasted three months 
longer, monthly Confession and Communion for a period of three or 
four months will suffice. 



LXII. INTERRUPTIO MISSAE FOR AN URGENT 
SICK CALL * 

The curate, Father Christopher, was celebrating holy Mass at a 
station some eight miles distant from his church ; the Blessed Sacra- 
ment not being kept at this station. Suddenly he heard a commo- 
tion in the sacristy — and immediately the sexton comes to him at the 
altar, reporting in a whisper that an old lady in the village had had 
a stroke of apoplexy and was near death. The priest had just 
finished the Pater Noster, and considering that his Mass would be 
over within a few minutes, he continues in celebratione. Before the 
sumptio corporis he breaks off a particle from the large host, as the 
Viaticum for the sick person. The Mass finished he hurriedly re- 
sponds to the urgent sick call. 

Now the question : Did the priest do right in both points — namely : 
(i) In finishing the Holy Sacrifice, and (2) in fractione alicuius par- 
tis ah hostia maiorif If not, what ought he have done? 

Ad I. We may here suppose two cases: 

a. If the moribiinda is considerable distance from the chapel, 
where the holy Mass was being said, so that the priest realizes he can 
not return within tempus debitum missam celebrandi ante meridiem 
to finish his Mass he should immediately consume the consecrated 
species omissis omnibus aliis (Cfr. de Herdt, Sacrae Liturgiae 
Praxis, torn. II. p. 3, pag. 237). 

b. If, however, he can return within the time he should interrupt 
the Mass, to continue it where he left off when returning from 
administering the last Sacraments. But in this case Sacerdos dili- 
gentissimc cnrare debet, ut Ss. Sacramentum reverentcr custodiatur, 
nisi considtum existimaverit, illud in tabernacido occluder e (de 
Herdt pag. 236 with quotation from Bened. XIV de Sac. 118). 

*By J. C. Gspann. 

270 



INTERRUPTIO MISSAE FOR AN URGENT SICK CALL. 271 

Still another possibility may be supposed. The priest may be of 
the opinion that he can return before the close of the time set for 
the celebration, ad continuationem missae, but it becomes impossible 
for him to do so, be it on account of a long General Confession, or a 
second sick call, or for some other good reason. De Herdt is of 
opinion that in that case the Blessed Sacrament should be reserved, 
to be consumed upon the following day post sumptionem s. san- 
guinis* 

Ad 2: Bishop Miiller (Theolog. Moralis, III. pag. 223) allows 
"laico dare partem hostiae majoris." i. In casu necessitatis, deiicien- 
tibus hostiis minoribus, quando nempe s. viaticum esset ministrandum 
moribundo. 2. Si unus alterve commimione re/iciendus non posset 
sine incommodo exspectare, dsquedum in alia Missa consecratae sint 
hostiae minores. 

No. I is literally true here ; a doubt in regard to permissibility is 

completely excluded. A difficulty would exist where there were lack 

of a proper vessel or of a second corporal. If a pyx is not at 

hand, then the Blessed Sacrament should be conveyed in a corporal. 

If there is not even a second corporal, then there is nothing to be 

done, but to cover the chalice with the paten upon which the Sacred 

Host is laid, and let it remain upon the altar; the Viaticum to be 

carried in the corporal to the dying. For the sake of completeness, 

we will suppose the possibility of the priest being called to a mori- 

bundus, ante consecrationem. If he returns within an hour, he should 

continue the Mass where he left ofif; but if the interruption is of 

longer duration, "ordietur ab initio" (Alph. lib. VI, n. 354). 

*Would it not be allowed, in this case of extremely rare occurrence, to con- 
tinue the Mass post tenipus debitum, per epikiam, as there are exceptions 
made, for instance in Loretto? 



LXIII. A CASE OF RESTITUTION. 

Lucy, when a servant in a Jewish merchant's house, made a false 
statement before an insurance adjuster, which now troubles her ^ 
conscience. A fire had broken out in an out-house, and in order 
that he might collect a larger sum, her master falsely declared that a 
quantity of clothing had burned, and he induces his clerk and Lucy 
to confirm his statement. The merchant is now a bankrupt, the 
clerk in comfortable circumstances, Lucy still without means and 
a servant in another family. The confessor imposes upon her the 
duty of restitution, because neither the merchant nor the clerk will 
make it. Lucy has nothing, and moreover, is not aware of the 
amount or to which company to make the restitution. The con- 
fessor promises to make inquiries and to let her know the result. 
Meanwhile he has scruples, and he asks whether he has acted cor- 
rectly. 

The obligation of Lucy to make restitution is plain in the case 
under consideration, and she shares this obligation with the clerk. 
One witness would not have sufficed, and Lucy therefore is made 
jointly responsible for the whole amount. If the merchant makes 
no restitution then Lucy and the clerk must refund the money with 
the right, of course, to make Levi reimburse them ; should the latter 
be without means, Lucy must bear half of the amount, the clerk 
being answerable for the other half ; the latter not paying, this part 
too would fall upon Lucy, of course, with the right of seeking in- 
demnity from the clerk. So, therefore, the decision of the con- 
fessor is right in principle. Now let us see whether his practical 
proceeding is to be sanctioned. 

272 



A CASE OF RESTITUTION. 



273 



First of all it appears to us as not well, nor advisable in general, 
to undertake such an inquiry. There is always present the danger 
to the seal of Confession, Moreover, the penitent's ready acquies- 
cence presumed, the matter is an unpleasant one and may lead to 
unforeseen complications. 

There is, moreover, no necessity for such inquiry in our case. 
Lucy is without means, and can therefore not make restitution. 
Indeed, a way is easily found out of the difficulty. 

It is here the question of making restitution to an insurance com- 
pany. These companies exist and prosper by the premiums of the 
insured. The rate of premium is determined by the probable aver- 
ages of fires, without regard as to whether a fire is incendiary or 
not. The company rightfully seeks by clauses and searching exam- 
ination to avoid fraudulent claims, but can not possibly prevent all 
fraud on the part of the insured. Hence in fixing the rate of pre- 
miums the company takes into account all these circumstances. 
It follows that the insured by their premiums are really made to pay 
for the fraudulent claims, and they consequently are the ones injured 
by fraud. 

Restitution is therefore really due to those paying the premiums — 
the insured. The number of the latter, however, is so great that only 
an infinitesimal part is borne by the individual. Their names are un- 
known. Therefore it appears that restitution in our case may be turned 
over to the poor. By so viewing the case (cf. Lehmkuhl I. 11, 34), 
the difficulty for Lucy is easily solved. She has the honest intention 
of making restitution, but through her poverty is unable to do so. 
For this reason the confessor may direct her to discharge her duty 
by giving alms to the poor, of which she herself is one, and thus 
to pacify her conscience. The merchant and the clerk, of course, 
remain under obligation of restitution. 



LXIV. LAY CONFRATERNITIES FORBIDDEN 
IN CONVENT CHAPELS.* 

The School Sisters of St. Francis in X. wish to have a pious 
confraternity estabUshed in their consecrated public chapel as an 
incentive to a growth of devotion among the people. The superi- 
oress applies to a priest asking the question : May lay confrater- 
nities be established in convent-churches, or chapels? 

The question is not a new one, for such early authors as Lucius 
Ferraris in his "Bibliotheca prompta," and others, have answered 
the same in a negative sense, referring to the interdiction of the 
Sacred Congregation Episc. et Regul. of April 6 and November 
6, 1595, of March 15, 1599, and of May 5, 1645: "Confra- 
ternitates laicorum erigi et institid non possunt in Ecclesiis Monia- 
lium." (Ferraris : tit. "Confraternitatis," Art. c. I. n. 38.) This pro- 
hibition was repeatedly renewed later, and even in recent times, and 
the answer of the Sacred Congregation of Indulgences of February 
29, 1864, makes it plain that the same concerns all chapels of orders 
as well as religious congregations of women. With great empha- 
sis, this prohibition was again renewed in the letter of the S. Congr. 
Episc. et Regul. of the 226. August, 1891, to the Bishop of Foligno, 
in the words : "Non placet Sa<:. Congregationi, ut in Monasteriis 
Monialium sub qiiovis titulo institiiantur Confraternitates laicorum, 
ad tollenda quamplurima, quae exinde oriri possunt, incommoda; 
imo praecipit, ut erectae tollantur, secus trans ferantur." 

That these decisions are not merely limited to individual cases and 
convents, may be learned, among others, from P. Beringer's work 
on Indulgences, approved by the Sacred Congregation of Indul- 
gences, which enjoys a great reputation. There it is stated as gen- 

*By J. Schwienbacher, C.SS.R. 

274 



LAY CONFRATERNITIES IN CONVENT CHAPELS. 275 

eral rule : "In churches or chapels of orders of rehgious women, 
whether rehgious communities in the strict sense of the word, or 
rehgious congregations, confraternities of laymen can not be estab- 
lished (II, T. IV. Sec. 4, III. n. 2.) The same principle we find 
proclaimed in the book about the arch-confraternity of Our Lady 
of Perpetual Help published in Rome, which in explaining that the 
same may be erected in every public church or chapel, states ex- 
plicitly "attamen eximendae sunt ecclesiae inonialiwn, in quibus 
jiixta plures Declarationes S. Congr. Episc. et Regul. institui 
nequeunt Confraternitates laicorum" (Pars III. cap. I. Sec. 55, II. 
n. 2). 

Exceptions from this rule are, according to Beringer, the League of 
the Sacred Heart of Jesus, and the Confraternity of the Immaculate 
Heart of Mary, for the conversion of sinners. Beringer, however, 
remarks that "In both these cases it appears only allowable that the 
nuns themselves and inmates of their institutions, also the pupils of 
such institutions, but not other lay people of either sex may belong 
to these confraternities." 

The ecclesiastical decisions in the matter do not warrant the pro- 
hibition to be extended to pious societies of all kinds. As, however, 
accor-ding to Beringer even the Sacred Congregation of Indulgences 
styles the same confraternities at times differently, as congregations, 
sodalities, pious unions, confraternities or arch-confraternities ; thus 
the scope of the word "Confraternity" is determined more from the 
object than from the name. A chief characteristic of confraternities 
consists, as Beringer observes, that they must be canonically erected, 
i. e., with ecclesiastical authority, at a certain altar or in a certain 
church, and for this reason must remain under guidance and control 
of that church, while the pious societies or unions, even though con- 
ducted by the clergy and enriched with indulgences, are as a rule. 



2 76 THE CASUIST. 

only simply approved, by the ecclesiastical superiors, npt, however, 
canonically erected. 

A pious union, therefore, which has the characteristics, just men- 
tioned, of a confraternity, must not be erected in a convent 
chapel, no matter under what name. For pious associations, how- 
ever, which have not the characteristics of a confraternity, there 
ensues from the ecclesiastical prohibition of lay confraternities in 
convent chapels, the grave warning to be earnestly vigilant lest the 
zealous cooperation of the nuns in lay societies might open the 
door to the very improprieties which the Church is so anxious to 
exclude : "Ad tollenda quamplurima, quae exinde oriri possunt in- 
commoda." (S. Congr. Episc. et Regul. 22, Aug., 1891.) 



LXV. CASUS MATRIMONIALIS PERPLEXUS. 

A certain newspaper, somewhat hostile to our creed, made much 
of the following news item : The marriage of Mr. P. and Mrs. P. 
was to take place in the parish of X. Mrs. P. had been divorced 
from her husband, who recently died. All the preparatory steps 
had been taken and there appeared to be no valid obstacle. When 
the bridal couple made their Confession, the bride informed the 
priest that for fifteen years she had been living in concubinage with 
the bridegroom, whereupon the priest became very angry, and after 
having given her absolution, he hurriedly left the confessional and 
made the matter known to the pastor. 

The latter sent for the bridegroom and informed him that he 
must get from the Bishop the necessary dispensation (the afifair hap- 
pened in a diocesan city), otherwise he could not get married. 
The Bishop being on a journey, the marriage could not take place 
that day. Upon the Bishop's return the dispensation was most 
courteously granted. The newspaper joins to this item the ques- 
tion : "Why did the pastor, on an occasion shortly before, marry two 
persons under similar circumstances, without protesting? Could 
it depend upon the amount of the fee ? And far worse. The seal of 
Confession was broken." Thus far the newspaper. A correc- 
tion appeared in the Catholic paper of the place stating the case 
correctly as follows : Bride and bridegroom approached the Sac- 
raments on the morning of the wedding-day, and all preparations 
were made for the ceremony. The confessor advised the bride that 
she could not be married and directed her to go to the pastor and 
inform him that there was an impediment. The couple in fact did 
go to the pastor, who, however, told them to apply to the Bishop 

277 



2 78 THE CASUIST. 

with the explanation that a marriage could not take place until a 
dispensation was received. The couple then proceeded to the Ordi- 
nary for the dispensation and as he was away from home, they sent 
a despatch after him, which, however, did not reach him. On his 
return, the following day, the Bishop readily granted the dispensation 
from the inipedimento occulta. The couple took the document to the 
priest and were united in marriage. No fee was asked either for dis- 
pensation or marriage. 

That the newspaper report had a malicious tendency is plain. It 
is equally plain that the seal of Confession was not violated and 
that money played no part. It may happen, likewise, that impedi- 
ments to marriage escape attention. 

If the bride had only shortly before become a widow, and the two 
had already lived together, the question must be asked whether the 
impedimentum criminis adulterii did not obtain. 

Let us leave that aside and turn to our main point. Did the con- 
fessor act rightly in directing the couple, when Confession was made 
immediately before the ceremony for which everything had been 
put in readiness, to make known to the pastor an impediment 
for which dispensation is obtainable, an impedimentum occultum, 
at that ? Decidedly not. The confessor in this case should have bid- 
den the bride to come back in about two hours, and in the meantime 
he himself should have proceeded to the Ordinary, to apply for the 
dispensation post absolutionem. And if this was by circumstances pre- 
vented, he should have performed the ceremony to avoid scandal. 
In that case the bridegroom was to be instructed to come to Confes- 
sion again in about a week's time. Meanwhile it would be possible 
to apply to the Ordinary and ask for approval of his conduct, and 
also for the faculty of dispensation. 



LXVI. TWO CONSECRATION CASES. 

[Ciborium extra corporale — super corporali.] I. A certain priest 
met with the following embarrassing accident. Before Mass this, 
priest directed the sexton to place the ciborium, well-filled with 
hosts, upon the altar, so that he might consecrate them during the 
Mass. The sexton places the ciborium upon the altar, where the 
priest at the beginning of the holy service notices it, standing beside 
the chalice and outside the corporal. At the offertory the priest 
forgets to offer up also the small particles, and he likewise forgets 
at the consecration to place the ciborium upon the corporal and to 
uncover it. Hardly is the consecration over when he, to his utter 
consternation, catches sight of the ciborium, outside the corporal. 
What is to be done ? Are the small hosts consecrated or not ? Must 
he repeat the words of consecration absolutely, or only condition- 
ally? Only a few hosts are left in the Communion-cup, there is a 
considerable number of communicants, and this is the last Mass; 
this thought is deciding; in his dilemma the priest repeats the for- 
mula conditionally, and then administers Holy Communion from this 
ciborium. To solve this case, we will in the first place answer the 
question. What conditions are necessary for the validity of the conse- 
cration ? 

For the validity of the consecration there is required, in the first 
place, as in the case of every Sacrament, the intention on the part 
of the dispenser to do as the Church does, and here a mere 
virtual intention suffices. Furthermore it is required that the proper 
matter be physically present; this is conditioned by the words hoc 
and hie; furthermore, that the matter be meant in individuo, where 
again the mere virtual intention suffices. The physical presence is 

279 



28o THE CASUIST. 

naturally to be understood morally, corresponding to the meaning 
of the words and the nature of the function ; so, for example, a host 
concealed under the corporal, or enclosed in the tabernacle, can 
not be considered physically present; on the other hand, it is not 
essential that the materia be actually held by the hands, or that it 
must be seen, for the hosts in the ciborium may be covered, "nam 
contentum cum continente reputatur et moraliter praesentatur." 
(Laymann, L. V. Tr. IV. c. II.) 

In our case both conditions for the validity of the consecration, 
namely the physica praesentia materiae and the intentio ministri are, 
though only virtualiter, present ; the first condition, because the cibo- 
rium, filled with particles, was standing on the altar beside the cor- 
poral ; the second, because the priest, before Mass, and while vesting 
in the sacristy, had the actual intention to consecrate the small 
hosts, for he directed, for that purpose, the sexton to put the cibo- 
rium upon the altar, and when ascending to the altar he actually 
noticed it there. This intention formed directly before Holy Mass, 
continued virtually, as the celebrant in proof of the actual intention 
performed the ceremonies of Holy Mass. As the actual intention, 
formed before Holy Mass, virtually takes effect in the act of offer- 
ing, and as the liturgical act of offering relates to the actual materia 
of the offering, as well as to the particles, it can hardly be said 
that the intention continues virtually in regard to the materia 
primaria but not also in regard to the present materia superaddita, 
seu secundaria. 

Since therefore the conditions for validity are present, the cibo- 
rium appears to have been validly consecrated. Hence St. Alphon- 
sus (n. 25) teaches, quite generally, without excepting our case; 
non debet repetere consecrationem, qui minores hostias ad altare 
detulit, de quibus maiorem consecrans non explicite cogitavit nee 



TWO CONSECRATION CASES. 281 

detexit." Laymann also (L. V. Tr. IV. cp. 11. n. 12) considers 
in this case the consecration vaHd, because both conditions praesen- 
tia physica and intentio virtualis are attendant. "Si sacerdos, ante- 
quam ad sacriiicandum egregiatur, de consecrandis hostiis in altare 
positis (therefore not necessarily upon the corporal, because put 
there before Holy Mass) . . . admoneatur easdemque conse- 
crare proponaf, postea vero omnino ohliviscatur, censeri debent nihil 
omninus consecratae, cum in tali casu neque hostiarum praesentia 
neque sacerdotis intentio virtualis desideretur." 

The Salmanticenses hold (de Euch. cp. 4, n. 125), that the conse- 
cration is valid, if the priest has the hosts brought upon the altar 
but at the time of consecration forgot about them, and in proof 
they go on to say "quia intentio virtualiter perseverat ;" without 
making any distinction as to whether the ciborium stood upon the 
corporal or beside it. 

It is an instance of irregularity only that the ciborium was stand- 
ing outside the corporal, there can be no question of sin, because 
knowledge and intention were lacking. And yet it is just this cir- 
cumstance, which is claimed by some authorities to cancel the 
intentio virtualis otherwise present. These authorities admit under 
the circumstances of our case that the physical materia is present 
and also that the priest has virtually the intention, though the 
materia superaddita be forgotten at the consecration, and that 
consequently the consecration is valid, but only then, if the 
ciborium at the consecration stands upon the corporal ; this 
they regard a conditio sine qua non. So Bucceroni (II. 
n. 511, 3) : "Valet consecratio, si quis ante sacrificium monitus fuerit 
de consecrandis hostiis iam super altari positis, etsi dum consecrat, 
earum non ita meminerit aut etiani ad ohlationem non detexerit, modo 
sint praesentes in corporali, quia intentio praecedens virtualiter per- 



282 THE CASUIST. 

several." These authors therefore make exception of the case, when 
the ciborium stands outside the corporal. But according to the 
Salmanticenses (de Euch. p. 4, n. 125), it is only "nonnulli" who 
make the exception : "dummodo sint super corporali," and their rea- 
son for making the exception is quia non est praesumendus sacer- 
dos indebite et illicite consecrationem facer e voluisse. (Salm. 1. c.) 

So also Aversa (de Euch. g. z. Sect. 2) non praesumitur sacerdos 
velle committere grave peccatum, quale esset ita consecrare. Like- 
wise Holzmann (II. tr. 3, cp. 2, art. 2) in his case holds that all 
six hosts present are consecrated even when the celebrant erro- 
neously supposes that there are only five upon the following gen- 
eral principle: . . . "sacerdos juxta ritum ecclesiae {sicut reg- 
ulariter solet et debet, ita in casu particulari) censetur habere in- 
tentionem consecrandi totam materiam, quam habet praemanibus, 
aut quam tulit ad altare vel ipse vel alius de ipsius consensu, si sit 
licite consecrabilis." 

The argument advanced is therefore : one can not presume the in- 
tentio consecrandi in the priest if a circumstance exists, unknown to 
the celebrant, which, if known to him, would prevent him from con- 
secrating, so as not to consecrate unlawfully. 

But this argument does not seem able to stand the test, because in 
its application and in its consequences it leads too far. 

It would certainly be grievously sinful to offer up the holy sac- 
rifice in an unconsecrated chalice, or with a badly broken host, or in 
wine not mixed with water at the offertory, or in wine which has 
soured though still valid material. If now one of these unlawful con- 
ditions were present without the priest being aware of it, it would 
have to be assumed according to the general principle above men- 
tioned that the consecration was invalid, "quia non erat licite conse- 
crabile, quia non praesumitur sacerdos velle committere grave 



TWO CONSECRATION CASES. 283 

peccatum." The advocates of the above-mentioned principle, how- 
ever, admit the vaUdity of the consecration in the cases named. 
Why, then, should the principle apply in a case when the ciborium is 
extra corporale, and not to the other forbidden conditions? That 
is not easy to understand. Such restriction would seem purely ar- 
bitrary. 

Nevertheless Roncaglia (de Euch. p. 2, q. 8) seeks to solve the 
difficulty by discriminating between the actual sacrificial materia 
as materia primaria, and the particles to be consecrated as materia 
secundaria seu superaddita; the priest intends at any rate the essence 
of the sacrifice of the Mass, notwithstanding a present but unknown 
defect; has, however, the intention only to consecrate modo licito 
the particles present in the ciborium, as materia secundaria, which 
is well reconcilable, as the essence of the Mass exists in its integrity 
without the consecration of the particles added thereto. Hence, ac- 
cording to this opinion, the sacrifice of the Mass would be valid with 
a fermented or badly broken host, with an unconsecrated chalice, with 
sour wine, with wine unmixed with water; the consecration of the 
particles, on the contrary, would be invalid if the ciborium stood 
outside the corporal, if the extra hosts were of fermented bread, etc. 

Even in this restriction to the secondary materia it does not ap- 
pear as if the principle could be defended. 

Not to uncover the ciborium at the consecration would, if it 
happened knowingly, be a grievous sin according to a few theolo- 
logians, and this is a condition which concerns the particles, there- 
fore, in this case, according to Roncaglia, the consecration would 
be invalid, at least in the opinion of those authors who regard the 
non-uncovering as grievously sinful. Yet in reality would even 
they doubt the validity of such a consecration ? Furthermore, let us 
suppose that the hosts contained in the ciborium are fermented. 



284 T-HE CASUIST. 

which is forbidden sub gravi; the priest, however, has placed the 
ciborium upon the corporal ; in this case the validity of the consecra- 
tion will generally be admitted, whether the priest forgets about 
the particles at the consecration and therefore has only virtual in- 
tention, or whether by the uncovering of the ciborium he manifests 
his actual intention; and yet it is here a question of the secondary 
materia! 

Or let us presume the following cases, so as to return to the case 
positio extra corporate, the pyxis stands outside the corporal, which 
the priest does not notice, and at the consecration he removes the 
cover ; or, the priest uncovering the pyxis moves it nearer, whereby 
its base slips under the edge of the corporal, so that the pyxis still 
remains outside the corporal ; in these cases no one will doubt the 
validity of the consecration, though we have here the forbidden 
case "extra corporate," and though it is here a question of secondary 
materia ! 

Both these last-mentioned cases are distinct from our case only 
by the fact that the priest in the former has actual intention, and 
in our case merely virtual intention. 

This accidental distinction, however, does not actually matter, as 
both the actual and the virtual intention suffice for the validity ; in the 
opinion of those authorities there would have to be added to both 
kinds of intentions : sub intelligitur conditio, si sit licite consecrabile. 

If we sum up all these suppositions, we come to the following 
conclusion ; either the principle mentioned must be allowed to apply 
in its full extent or not at all, a middle course does not seem possi- 
ble ; as however even the advocates of the principle do not let it 
govern universally, it seems as if this principle would have to be 
dropped as not tenable. 

Hitherto we have viewed this principle "non est praesumendus 



TWO CONSECRATION CASES. 285 

sacerdos illicite consecrationem facere velle," from the outside as 
it were, namely, in its application and in its consequences ; if we now 
consider the same according to its nature and essence, it proves 
itself equally untenable.* 

According to this principle the proof of the invalidity of the con- 
secration in the case before us is taken "ex praesumpta intentione 
celehrantis," meaning: one can not suppose that the celebrant has 
simply the intention to consecrate under all circumstances, whether 
forbidden conditions exist or not, but it is rather to be supposed 
that he has the intention not to do anything at Holy Mass that might 
be a grievous sin, therefore only to consecrate (at least the materia 
secundaria) when the permissibility is endangered by no weighty 
qualifications. It is presumed accordingly that the priest has in a 
manner an intentio conditionata, in so far as he either in every 
single consecration of the particles makes this condition, or that he 
once and for all resolves upon this general intention : I shall never 
intend to consecrate, if a condition exists which if realized would 
make the consecration gravely unlawful. If a priest really has this 
intention the consecration is, of course, invalid if such condition be 
present, because the original intentio conditionata by the entering 
of the contemplated condition becomes an intentio absoluta. Where 
however such intention is lacking, then it must be held praesumpta 
ilia voluntas nulla est. 



*In our argument we have pointed out that in regard to the transub- 
stantiation of the Eucharistic species the discussed principle in its logical 
application leads too far, and left aside the fact that this principle would 
also be made to apply to the other Sacraments, of which it would like- 
wise have to be held "non praesumitur sacerdos velle committere grave 
peccatum." It is easily seen of what grave consequences it might be if the 
priest, in administering the Sacraments, Holy Baptism, for instance, had 
always the intention to administer the Sacrament only if no condition be 
present which is forbidden sub gravi. 



286 THE CASUIST. 

The question is, have priests really, as a general thing, the con- 
ditional intention only to consecrate, si sit licite consecrabile? It 
would appear that hardly any priests make this general condition 
beforehand nor regularly in each single case, as otherwise the hesi- 
tation and the doubt about validity or invalidity of the consecra- 
tion, as soon as after the consecration an impeding condition is dis- 
covered, would be utterly inexplicable, for of course if they had 
really had this conditional intention, they would be aware of it, 
and there could be no doubt that the consecration was invalid. 

The reason why hardly any one has this conditional intention, is, 
because under these circumstances the non-observance of a pre- 
scribed form will be no sin, as in all these cases ignorantia is pre- 
supposed. Besides, one might be placed in considerable embarrass- 
ment by this conditional intention, if, for instance, no consecrated 
particles are at hand, when needed for the Communion of the faith- 
ful. It seems, however, that a distinction must be made as to whether 
it is a question of consecrating a few particles upon the paten, or 
whether the priest intends to consecrate a larger quantity in the cibo- 
rium. In the first case, the priest has the tacit intention only to con- 
secrate what there is contained upon the corporal, and for that reason 
the celebrant may properly consider as not consecrated, any particles 
found outside the corporal after the consecration. In the second case 
the priest has not the intention to consecrate only that which is lying 
on the corporal, when perhaps inadvertently he has let the ciborium 
stand outside the corporal. This distinction is evident by the nature 
of the proceeding, because the single particles are placed, from the 
beginning, upon the paten and therefore upon the corporal, while, 
on the contrary, the ciborium stands in the beginning outside the 
corporal, and only during the Holy Mass is placed upon it. 

It may be gathered from the above that the principle referred to is 



TWO CONSECRATION CASES. 287 

hardly admissible and that much rather the following general tenet 
may be adhered to : It can not be held that a priest has not the in- 
tention to consecrate, when, without his knowledge, a condition, not 
interfering with the essence of the Sacrament, is present, which 
if knowingly tolerated would be a grievous sin. The universal 
practice of the Church supports this tenet, because whenever the 
valid administration of a Sacrament is questioned, inquiry is always 
made whether the substantial elements are present, but not whether 
also the accidental elements were observed, even if sub gravi pre- 
scribed. 

This terminates our speculative discussion, and the result is that 
the validity of the consecration under the conditions mentioned is 
far more probable than its invalidity.* 

The important question now demands our attention : What prin- 
ciple is to guide us in practice? Although the authorities differ in 
the theoretical explanation, yet they agree in their view of the 
actual instance, that the particles are to be again consecrated con- 
ditionally, as the validity of the consecration is not quite certain; 
it does not, however, follow that our speculative discussion is super- 
fluous, for it brings about a more profound understanding of the 
matter, and sheds a bright light upon obscure points. While St. 
Alphonsus designates the verdict of the invalidity of the consecra- 
tion as communis, the Salmenticenses as we have seen above de- 
clare that it is only nonnulli who argue the invalidity. Since, there- 
fore, the matter is not decided we may be guided in practice by 



*Lehmkuhl considers as more probable in our case the Invalidity of the 
consecration because he holds that the priest's intention before the sacrifice 
of the Mass had probably been only "propositum particulas assumendi et in 
consecratione includendi." This verdict was not touched upon in the above 
discussion, for the reason that our purpose was chiefly to refute the argu- 
ment ex praesumpta intentione celebrantis. 



288 THE CASUIST. 

P. Lehmkuhl who writes : "Si igitur dubia manet consecratio, par- 
ticulae aut in sequenti missa sub conditione iterum consecran- 
dae sunt aut — id quod nisi aliunde incommodum oriatur, maioris 
reverentiae causa praeferendum videtur — post sumptionem sacri 
calicis ante ablutionem a sacerdote celebrante consumi debent." The 
latter, of course, is possible only when there are very few particles. 
St. Alphonsus also advises that since the matter in the practice 
remains always res dubia, it is reasonable to agree with what Pope 
Benedict XIV teaches, namely, that this ciborium should again be 
consecrated. 

From the above we may now review the priest's action in the 
present case. He did not do well in repeating the consecration 
conditionally during the same mass, for as the actual matter of sac- 
rifice has already been consecrated this repetition of the consecra- 
tion was equal to a consecratio sub una specie, which is never 
permitted, not even if the Viaticum were called for by a dying per- 
son. The celebrant should therefore have reserved the ciborium 
for another Mass, and the faithful should have been directed to 
come to Holy Communion upon the following day. 

n. On account of its similarity we will quote briefly a second case 
which, no doubt, has happened to many a priest: A priest orders 
the sexton, before Mass, to put the ciborium containing the hosts 
upon the altar, in order to be consecrated. At the commencement 
of Holy Mass the celebrant places the ciborium upon the corporal, 
beside the chalice, but during Mass he entirely forgets about it; he 
does not uncover it at the consecration, hence at the end of Mass 
he takes it for granted that the ciborium has not been consecrated; 
he has it carried back into the sacristy, in order to consecrate it the 
following day. 

The solution of this case is plain from our argument in the first 



TWO CONSECRATION CASES. 289 

case. According to St. Alphonsus (n. 217) it is sententia communis, 
that the consecration is valid if the ciborium stands upon the cor- 
poral even if at the consecration it is entirely overlooked. In 
reality all the requisites for its validity are present, namely the 
praesentia physica, and, moreover, the intentio virtualis, which the 
priest manifests sufficiently by having the ciborium brought to the 
altar, and by his placing it upon the corporal. There was, of 
course, an omission of a circumstance prescribed by the rubrics, 
namely, the ciborium was not uncovered, still the non-observance 
of this accidental circumstance does not interfere at all with the 
validity of the consecration; in the first place, moralists admit 
almost universally that it is not decreed sub gravi to uncover the 
ciborium and, secondly, even supposed it be an obligatio gravis, its 
wilful omission therefore a grievous sin, yet this would not preju- 
dice the validity, because the principle non praesumitur sacerdos 
velle committere grave peccatum, has according to our examination 
no weight. Hence it follows that in this second case the priest could 
have distributed these particles to the faithful in Holy Communion, 
without any doubt or hesitation. 



LXVII. MARRIAGE BY PRIEST WITHOUT BANNS 
AND CONFESSION * 

Elvira, after a lapse of ten years since her last Confession, ap- 
peared in the confessiotial. In the interval she had been seduced by 
Alexis, and become a mother, had been civilly married to him, and 
borne him three children. Both husband and wife are highly es- 
teemed by the community, and no one knows of their merely civil 
marriage. Father Titus refuses absolution until Elvira shall bring 
her husband to have their marriage performed by a priest. Next 
day she appears with Alexis. The priest questions them in regard 
to possible impediments and finds that there exist none. He can not, 
however, induce Alexis, who agrees to the church ceremony for 
Elvira's sake, to go to Confession, he declares that sooner than to do 
so, he would do without the church ceremony. Thereupon Father 
Titus decides to make use of his authority to marry persons living 
in concubinage, without previous publication of banns; he hears 
Elvira's Confession, gives her absolution and then joins the parties 
in marriage before two witnesses. Did he do right ? 

Solution. Titus was quite correct; it would have been wrong to 
have acted otherwise. 

The reasons for this decision are obvious. Of course the pastor 
is obliged to exclude as far as possible the unworthy from partici- 
pating in the Sacraments. Matrimony being a Sacrament of the 
living, requires a state of grace; no one therefore can approach it, 
without having been previously purified from such grievous sins 
as he may have committed. Even if this can take place by an act 
of perfect contrition, yet the pastor ought to insist upon a good 
Confession, and the priestly absolution before marriage. But in 

*By A. Lehmkuhl, SJ. 

290 



MARRIAGE WITHOUT BANNS AND CONFESSION. 291 

matrimony the priest is not dispenser ; he is only an authorita- 
tive witness. To prevent its unvi^orthy reception he is under obH- 
gation only in so far as his is the duty of direction and furthermore 
the duty to avoid becoming accessory to sin. This duty is, how- 
ever, superseded when weighty reasons are opposed to it. 

In our case there are the weightiest reasons why lawful marriage 
between Alexis and Elvira should take place, especially considering 
Elvira, who earnestly desires to be reconciled to God and who is 
anxious to have her relation to Alexis put in proper order. She is 
for her own sake, and for the sake of her children, entitled to a 
lawful marriage ceremony ; without such she would be compelled 
to leave Alexis, to throw herself penniless upon the world, and to 
see her children dishonored ; or else she would remain in the near 
occasion of sinning. If, therefore, Alexis consents to the church 
ceremony, to make their marriage lawful, but without being recon- 
ciled with God, therefore on his part sacrilegious, the pastor, as 
well as Elvira, has sufficient reason not to refuse on his part the 
necessary material cooperation ; indeed the pastor is bound to lend 
his priestly assistance in the marriage, if he otherwise fails to find 
any impediment. This question is in a detailed and thorough 
manner in Lugo's De Sacramentis in Genere, disp. 8 {sect. 13 
and 14). 



LXVIII. THE NEAR OCCASION WITH RELATION 
TO COMPANY-KEEPING * 

Titiiis, a young single lad, has intimate relations with Ursula, a 
young unmarried person. He has repeatedly at night visited and 
sinned with her. There is no prospect of marriage. He has prom- 
ised his confessor time and again to cease this sinful attachment. 
Coming to Confession again he tells Father Lucas, his confessor, that 
he has not sinned with Ursula since his last Confession, although he 
has several times visited her in her room at night. He gives posi- 
tive assurance that no further impropriety will take place and asks 
may he not associate with the person as with a sister? 

Father Lucas inquires : "Did you not have temptations during 
those nocturnal visits?" Titius : 'T did have very strong temptation, 
but I would not consent !" Father Lucas : "Is there no possibility of 
your marrying one another ?" Titius replies in the negative, and men- 
tions he does at any rate not care to marry. Father Lucas then 
directs him to give up the acquaintance with that person, it being the 
near occasion of sin for Titius as well as for Ursula. 

Titius after some argument finally agrees to give up the person, 
but insists that he must visit her just once more at night in order 
to take leave of her, and also because he has many things to tell her, 
and that she has articles belonging to him which he wants to re- 
cover. Father Lucas asks : "What good reason is there to visit her 
only at night-time? Why not by day?" Titius: "It would not do 
by day, because we should get a bad reputation if seen together. 
Then, too, I can not arrange matters within the few minutes that I 
could be with her in day-time." Father Lucas then allows this last 
visit provided Titius gives his word of honor that this shall be the 

*By I. J. Braun. 

292 



COMPANY-KEEPING AND NEAR OCCASION. 293 

last visit, that he will make it as brief as possible, and that he will 
take utmost care not to let anything improper happen. Titius prom- 
ises all this faithfully and parts with the absolution. 

Qtiaeritur. i. Was Father Lucas obliged to demand that Titius 
give up his relations with this person? 

2. What is to be held in general of courtships and company- 
keeping? When are they allowed, when forbidden? 

3. Was Father Lucas correct to allow to Titius the taking leave 
of Ursula in her room alone and at night? 

Anszver. i. Father Lucas was strictly bound in conscience to for- 
bid to Titius his nocturnal visiting with the person; for what good 
purpose can there be in a courtship with no prospect of marriage? 
Even if Titius for a brief period, since his last Confession, has not 
had improper relations with the person, it is obvious that due to 
his passionate and sinful affection for the person, he will fall again 
into sin, and that then the last state will be worse than the first. 
No one may expose himself voluntarily to the near occasion without 
necessity or important reasons. The visits at night to the person 
were in themselves grievously sinful because without necessity and 
reason. 

Courtship and company-keeping can not be condemned at ran- 
dom; young people must have an opportunity to become acquainted 
before they become linked together for life. 

Courtship and company-keeping is, however, permissible only 
where there is the intention and the possibility of ultimate marriage. 
Where one or both of these is lacking, such relation must not be 
tolerated. In other words the one starting or indulging in a court- 
ship must have the will and the ability to marry the courted person. 

The so-called company-keeping {amoves, procationes) between 
persons of opposite sex is in itself not immoral, provided that there 



294 THE CASUIST. 

exists between such amantes a proper and sincere intention, and a 
not too remote prospect of marrying, and provided further the rela- 
tion, the vicaria relatio, appears to be free of impropriety, tarn peccata 
carnis, quam occasionem proxiinam talium pcccatorum excludens. 

In fact, in case of contemplated marriage, a previous consociation 
is judicious, and even necessary, because the young people should 
get knowledge of each other so as to convince themselves that they 
can respect and love each other. Gopfert in his Moral Theology 
writes : 

"What is to be thought in general of acquaintanceships, con- 
tinued association, visits, etc., between young persons of opposite 
sex? It can not be said that they are in themselves grievously sin- 
ful, but as a rule they are hardly anything else but the near occasion 
of grievous sin. Three conditions may be named under which they 
may be permitted, namely, that they should be begun for a good pur- 
pose, that the intercourse must take place within proper bounds, and 
that the necessary precautions be employed. 

1. They must be begun with a good purpose, in other words, with 
the intention to contract marriage soon, i. e., within a relatively 
short time, to be determined by reasonable judgment and according 
to the usage of conscientious persons. Owing to the danger of mixed 
marriages, inquiries should be made as to whether the other party 
is of the Catholic faith, and if not the person should be seriously 
warned against further intercourse and against a marriage promise. 

2. Intercourse shall take place only within proper bounds, i. e., not 
too frequent and not too long visits. A greater frequency may be 
allowed if the wedding is to take place in a short while, say in a 
month or two ; a lesser, the farther off the wedding seems to be. A 
greater frequency may be tolerated if the young girl is never left 
alone with the young man, but always under vigilant care ; a lesser, 



COMPANY-KEEPING AND NEAR OCCASION. 



295 



when the young people are usually left alone, or when the girl is not 
under the care of parents or relatives who watch over her. 

3. At these visits the necessary precautions must be taken: The 
young people must not be in each other's company without the par- 
ents' knowledge, and not without their silent or expressed approval ; 
as far as possible not be left alone, and they must fortify themselves 
against temptation by spiritual means. 

Where these three conditions obtain, such relations and courtships 
are not unlawful, even if a grave danger were present, because they 
are morally necessary conditions, for to demand that one should 
marry a comparatively unknown person would be unreasonable, and 
if one would not admit this reason the confessor would accomplish 
nothing else than that the young couple would now ex mala Ude surely 
sin. For these reasons such visits may not be forbidden even If the 
parties fall into sin on account of them. The confessor will in such 
cases accomplish more, if he seeks by appropriate means to make 
the occasion a remote one ; if he, for instance, advises that they never 
be left alone, that some one be always present, even if only a little 
boy or girl; in their presence grievous exterior sins could not (easily) 
take place ; excessive marks of affection will not easily occur ; he 
will counsel them to restrict demonstrations of affection in their 
frequency, duration and manner. If he does not improve matters then 
these people may be considered as in occasione proxima moraliter nec- 
essaria absente, and relapsing continually into this same sin. It is 
to be considered which is more promising, to demand that the couple 
employ other and more effective means or that they omit entirely 
their visits, marks of affection, etc., and this is to be imposed upon 
them in Confession." 

Gopfert has gathered in these directions nearly everything of 
moment that is to be found in the various standard authors about 



296 THE CASUIST. 

the lawfulness of courtships, etc. Difficult, yet incalculably import- 
ant for the priest, is the question : When are courtships prohibited r 

Let us quote here, first of all, from the writings of Blessed Leo- 
nard of Port Maurice, who teaches on this subject: "It seems that 
much less severity and more indulgence is indicated in the occasions 
that are not in esse, as : visits to gambling-houses and places of 
amusement, of gatherings and inns, love affairs, etc., for according 
to the instructions of St. Charles, if the penitent promises to give 
them up, and if this promise comes from the heart, one may give 
absolution at least twice or three times, but only in the supposition 
that the confessor perceives such promise proceeds from a sincere 
and contrite heart. If the penitent has often before promised reform 
and has not amended his conduct then the saintly archbishop instructs 
that absolution be refused until the near occasion has been avoided. 

Among those occasions that are not in esse, there should be placed 
in the front ranks, in my opinion, the amorous alliances, which in 
our days are a stumbling-block for the young. Some are unwilling 
that there should be such an outcry against this unholy love, because 
they fear to disseminate wickedness where there is none, or that one 
might represent as a sin that which in reality is not a sin. They 
claim that the soul is given thus a false conscience and a false shame, 
and that it will plunge from sin to sin, at last unavoidably into sacri- 
lege. But alas! the delusion of those perhaps unaware of the true 
license and wickedness of our days, 

I do not deny indeed that it may happen to an imprudent confessor 
who has asked an innocent girl whether she has a love affair and 
upon her admission, that he has been too strict with her, without first 
examining as to the nature of her affection. But this is a very rare 
case, which strictly speaking does not merit so much consideration. 
That which causes tears to the servant of God is the spectacle, that 



COMPANY-KEEPING AND NEAR OCCASION. 297 

in our days depravity has burst its barriers, and overflowed in every 
direction, sweeping away with it the youth of the tenderest age. 
Alas, they say in sadness, why censure the few at their excess of 
zeal, and then be silent, even palliating the forbearance of so many 
others, who blindly absolve all those enamored who in their love 
affairs commit sins of all kinds ? 

It would be wrong to conclude that to be in love is always a sin, 
but it would be still worse to suppose that it is always innocent. If 
one is to judge relatively, and according to the things which gen- 
erally happen, it would be regarded as an incontestable proposition 
that love-making as it exists in these days is mostly a near occasion 
of sin. Would to God that this view was not proved by long 
and sad experience ! 

It is true that now and then the love of young persons is innocent 
in the beginning, but it turns evil as it progresses. They begin look- 
ing upon one another with pleasure, and affection turns gradually 
into passion, and passion plunges them into the abyss without bot- 
tom. Now give me your attention and answer me this question : 
Are we physicians of the soul ? And if so, how can we tolerate such 
a baneful abuse, which infects the world by so many marriages con- 
summated in darkness, with so many murders, with so much de- 
bauchery, with hatred, scandal and crimes of all kinds? For this 
reason there must be among us a firm determination to knit the 
sacred bond more firmly than ever, and to he uniform in postponing 
and even in refusing absolution to those who, found guilty, will 
not promise to give up their frivolous love affairs. In order to dis- 
cover positively whether love affairs are innocent or sinful, one has 
only to ask questions and small indeed will be the number of those 
where no disgraceful circumstance insinuated itself on part of either 
one or other, which renders such an abominable courtship absolutely 



298 THE CASUIST. 

unlawful. In order, however, that you may have an example before 
you, that will render you cautious in questioning as well as firm in 
refusing absolution, when this be necessary, I will here repeat word 
for word, what the learned and devout Cardinal Pikus of Mirandola, 
Bishop of Albano, wrote in a pastoral letter which deserves to be read 
by every confessor : His words are : 

"We exhort all confessors not to absolve those who live in love 
affairs, if such are grievous and unlawful and if, after a third warn- 
ing from their confessors, they actually have not reformed. Give 
them to understand that if they do not amend, they must not expect 
to be absolved by you, neither can they ask this of any other confes- 
sors. 

The general cases in which love affairs may be regarded as 
absolutely unlawful, we now add here briefly, and for good reasons 
in Latin, so that on this point, as it should be in all others, your pro- 
ceeding may be uniform. 

/. Quandocumque ita Hat, etiam inter pares, et causa matrimonii 
ut intercedant oscula, vel tactus, vel amplexiis, vel delectationes 
morosae, aut periculiim labendi in quodvis grave pcccatum. 

II. Quando Ut inter eos, qui sunt disparts conditiones propter 
scandalum et periculum moraliter peccandi. 

III. Si Hat cum illis, cum quibus impossibile est contrahi matri- 
monium, ut sunt uxorati, claustrales et in sacris ordinibus consti- 
tuti, turn quia non potest cohonestari talis amor fine matrimonii, turn 
quia intercedit scandalum et periculum labendi in culpas lethales. 

IV. Si fiat in e celesta, tum propter irreverentiam, tum propter per- 
iculum audiendi sacrum sine debita attentione, tum etiam propter 
scandalum. 

V. Si adsit praeceptum patris vel matris aut tutoris rationabiliter 
prohibens talem amorem, quia etiamsi reliqua sint honesta, filii jam- 



COMPANY-KEEPING AND NEAR OCCASION. 299 

Uias et pupilli tenentur in re gravi, tit sine dubia haec est, obedire par- 
entibus vel ttitoribus sub poena peccati mor talis. 

VI. Quando clam fit et occulte, turn quia est expositus gravibus 
periculis et occasioni proximae graviter peccandi, turn quia quando 
ita Hi regidariter exercetur contra voluntatem parentum vel tutoruin. 
quibus Ulii et pupilli obedire debent. 

VII. Si tempore nocturno fiat propter scandalum et pcricidiun 
peccandi, etc. 

VIII. Si Hat sub praetextu honestatae recreationis et relaxandi ani- 
mum, quia semper urget periculum et occasio proxima labendi ex 
longa mora, in qua habentur colloquia, mutui aspectus, protestatio 
amoris, etc. 

IX. Si eo modo fiat, ut ex se involvat periculum proximum oscu- 
lorum, tactuum, etc., etiamsi aliunde ille amor esset licite exercitus, 
quia est inter solutos et causa matrimonii; si, v. g. domi admittatur 
amasius, vel ita approximetur ut nemo non videat, adesse occasionem 
proximam tactuum, etc. 

X. Si amator vel amatrix animadvertat , complicem amoris esse 
graviter tentatum,, vel alterum urgere verbis turpibus, vel alio modo 
ad inhonesta, etc., etiamsi alter complex nihil tentetur et mdlam sen- 
tiat inclinationem ad peccandum; in quo casu erit utrique illicifus 
amor ille propter periculum proximum delectationis et scandali activi 
in uno, et passivi in altero, in quo graviter laedetur charitas ergo 
proximum. 

XL Denique universaliter loquendo, quoties cumque ob causam 
amoris amator vel amatrix frequenter labitur in aliquam gravem 
noxam; tunc amor induit rationem occasionis proximae mali et est 
omnino illicitus. 

All these instances should be well considered and penitents who 
are dominated by the passions should be carefully questioned, using 



300 THE CASUIST. 

due precaution ; then I should like to ask whether the above-men- 
tioned proposition is not incontestable, namely, that the love affairs 
in our day are, for the greater part, the near occasion of sin. And 
if this is so, how should not that penitent be warned who has been 
frequently exhorted and yet will not amend ; who perhaps even 
quarrels with the confessor and expects to compel absolution from 
him? 

I summon before God's tribunal all those confessors who seek re- 
nown from dangerous complaisance by absolving all without reflec- 
tion ! They are the ruin of youth, indeed, of the world, for a badly 
brought-up youth is the formation of all evils and of all family dis- 
orders." (Instructions for Confessors by L. of P. Maurizio.) 

Any one with experience in the confessional knows how true and 
important these words of Blessed Leonard are for every confessor. 

Gopfert in the book quoted above, writes briefly and admirably 
about this kind of love affairs as follows : When the parties in ques- 
tion do not intend marriage, or if they, on account of circumstances, 
will never be able to get married, or if only after a long time (this 
must be left to the prudent judgment of the confessor), then the 
keeping of such company is occasio proxima voluntaria absens (non 
in esse) and if the parties have been »varned a few times by their 
confessors, without result, then they are not to be absolved until they 
obey. This is to be enforced so much more strictly if they have been 
sinning grievously one with another, or if their conduct has given 
scandal. In this regard the parents, too, especially the mothers, 
should be earnestly exhorted in Confession, so that they will 
not permit their daughters to be absent from the house at evening 
and night, to associate with young fellows, in which case sin is often 
not far off. This strict proceeding is all the more necessary if such 
acquaintances were already begun with no good intentions. It is sinful 



COMPANY-KEEPING AND NEAR OCCASION. 301 

to accept presents, given with the purpose to start an ilh'cit love affair, 
even if the recipient fosters no wrong intention, unless explicit pro- 
test is made against any bad purpose, for by accepting the present 
an impure hope is created in the giver, which imperils the receiver. 
Indeed, such persons should be induced, in order to avoid all danger 
for the future, either to return the presents thus received, to destroy 
them, or to distribute them among the poor (Renter, Neoconf. n. 
113; Lehmkuhl I. 645; S. Alf. I. 6 n. 854). 

Ad 2. (After the above discussion the solving of the second ques- 
tion is not difficult.) Was Father Lucas correct in allowing Titius to 
go and take leave of Ursula, in her room alone and at night? We 
have learned that Titius declares himself willing to give up his 
sinful relations on the condition that he may go and say goodbye. 
He gives as reason that he has much to discuss with her and that 
he must recover some articles of his. He chooses the night-time 
that people shall not talk about him. None of these reasons are valid, 
because whatever he has to tell her he can do by writing, and the 
articles belonging to him can be sent to him either through the mail, 
or by some trustworthy person. Why should there be a leave-taking, 
when there must never be another meeting between them? When 
saying goodbye people are likely to become wrought up. The pas- 
sion, strong enough to have caused them to sin, would be powerfully 
aroused, and instead of a parting there may very likely be the be- 
ginning of a new life of sin ; at the very least there would be 
grievous sinning more than probable, and this would be favored by 
the time, the place, and the circumstances {solus cum sola ultimo). 
It would really be a miracle if no sin would be committed. God 
protects only those who venture into danger through necessity. 
Titius is frail. He has been unsuccessful in combating temptations. 
Will he not almost certainly be overcome again? Will the tempter 



302 



THE CASUIST 



or temptress not whisper to him, Just once more, it is the last time! 
Consequently Father L.ucas had no right to allow Titius this noc- 
turnal farewell visit. 

In conclusion let us say that it may puzzle some why such a deli- 
cate subject was chosen by us for discussion. It was done, because 
so many confessors are on this point guided by an incomprehensible 
laxity, they absolve everything that comes their way. The priest at 
his ordination receives not only the power to remit sins, but to retain 
them likewise. When a confessor, however, quoad sextum, cherishes 
the axiom : "These are sins of weakness, they can not be helped. It 
always has been, and always will be so," we will answer, To be sure 
the individual is powerless to turn this turbid tide, but if all work to- 
gether this tide will be kept within bounds so that it may not over- 
flow and cause disaster. After all, where must the responsibility for 
the shocking increase in frivolity among our people be placed if not 
on the laxness of confessors? Would that all confessors acted ac- 
cording to the principles of Blessed Leonard of Port Maurice, writ- 
ten down in his admirable "Instructions for Confessors." 

The souls who through the fault of lax confessors lived on for 
years in the gravest sins, who died in them and went to perdition, 
will cry to God for vengeance. Let us apply fire and iron there, as 
Blessed Leonard advises, where on the above point gentle advice and 
earnest exhortations are fruitless. Only by concerted action of our 
confessors can the trend of immorality of our time be successfully 
checked, at least among our own people. 



LXIX. CONFESSARIUS EXTRANEUS 

(A Case from the Law of Regulars.) 

Father F., a religious, has had the misfortune to fall grievously, 
and the sin committed is, moreover, a reserved one in his Order. He 
is greatly ashamed of it, and can not get himself to confess his sin 
either to his ordinary confessor, or to any other in the Order, 
although according to the constitution of the Order, he is bound 
to do so. He finally goes to a certain secular priest in whom he has 
special confidence on account of his venerable age, and is absolved. 
Subsequently, however, he is frequently troubled with scruples about 
the validity of his Confession to the secular confessor. 

Questions: i. Are there cases in which a religious may confess 
to a priest not of his own Order? 

2. If so, can such confessor absolve in a case reserved by the 
Order? 

3. Are the doubts of Father F. well founded or not? 

Ad I. Although according to the papal constitution the (exempt) 
regulars in general may only confess to their superiors, or to those 
priests of the Order authorized by them, still there are cases in 
which a religious may make his Confession to an outside priest, a 
regular of another Order or a secular priest. Apart from a special 
privilege, which may be given to members of an Order to confess 
outside the monastery, even to a secular, there is a distinct instance 
given in the decree of Clement IV, Virtiite conspicuos, and in a later 
almost identical decree of Boniface VIII, which allows a regular in 
some cases to seek a confessor outside, namely in necessitatis articulo. 
Now what is meant by necessitatis articulo? 

Piatus Mont, briefly answers this question as follows : Alii ad hoc 
requirunf extremam necessitatem, qualis est articulus mortis. Alii 

303 



304 THE CASUIST. 

huic casiii adjungunt casum diuturnae commorationis inter inMelis, 
ubi alii fratres non sunt Ordinis nostri. Alii tandem hunc casum 
extendunt ad necessitatem vitandi scandalum, vel impediendi ruinam 
poenifentis spiritualem vel consulendi ejusdem saluti. ( Praelectiones 
Juris Regularis, ed. 11. torn. I. p. IV. c. i, a. 2, qu. i.) 

A religious away from his monastery ex causa rationahili et cum 
licentia Praelati, or on a journey, may, in the event of not finding a 
suitable religious, go to Confession to any non-regular. Whether in 
such case the confessor thus chosen must be approved or not, is a 
mooted question. Authorities, such as Saint Alphonsus (1. VI. n. 
575), Lehmkuhl (torn. II. n. 394), Ballerini and others, deny this, 
while Piatus for important reasons advocates the approbation, by 
remarking in his Praelectiones J. R. (pag. 416, qu. 12) : Alii vera 

. . . requirunt, ut sacerdos electus sit approbatus. Etenim con- 
fessario in hoc casu non confertur jurisdictio, neque a praelato regu- 
lari, neque a Romano PontiUce. Non a praelato regulari, cum superior 
regularis nequeat, nequidem in Ordine, aliquem deputare, nisi sit ido- 
neus, et uti talis inventus per examen. Neque a Summo Pontiiice\ 
quia in privilegiis Romani PontiUces semper requirunt, ut cUgatur 
confessarius idoneus. Porro idoneus censeri nequit nisi ille, qui a 
superiore suo approbatus sit, and quotes further proof of his con- 
tention, especially a decision of the S. Congr. Episc. et Regularium, 
according to which the religious of an Order are allowed, by con- 
sent of their superiors, to confess to a ''sacerdos extraneus" "dum- 
modo ab Episcopo sit approbatus," if the constitution and statutes of 
the Order do not oppose it. Our canonist will have this applied to 
secular confessors, while according to the sententia communissima 
for a regular confessor approbation of his own superior should suffice 
(Op. cit. pag. 417 qu. 13). How does this concern our unfortunate 
Father F. ? Was he privileged, although not away from the monas- 



CONFESSARIUS EXTRANEUS. 



305 



tery, and in spite of a copia confessarii, to go to a confessarius ex- 
traneus without fearing that such Confession would be invahd ? We 
believe we can answer this in the affirmative for the following rea- 
sons : Let us place ourselves in the position of Father F. He has 
committed so grievous an offense that for very shame he can not 
make up his mind to reveal his sin to a confessor who is his col- 
league, whom he must often meet, with whom he daily associates. 
Although P. Albertus a Bulsano O. C. teaches in his "Exposliio Reg- 
ulae F. F. Minorem" (ed. nov. pag. 385) : Praecaveatur, ne qiiis exeat 
in fraudem ad detergenda alieno Confessario peccata, quae Confes- 
sario proprii ordinis conHteri erubescit; nam juxta commune adagium. 
fraiis et dolus nemini patrocinari debent*, yet we must well dis- 
criminate here between the shame that is naturally allied to the con- 
fession of a simple peccatum grave, and which does by no means of 
itself justify a religious in seeking, against the papal regulations and 
the constitution of his Order, an outside confessor, and the morti- 
fication that a peccatum, unusual for the standing of the penitent, 
especially in a certain materia, brings with it, and which in a reli- 
gious may be so great, that it would be asking of him something 
akin to heroism, to confess such case, under conditions which ac- 
cording to the rules of his Order are joined to an acknowledgment 
of such character. 

This would, of course, correspond well to the humility of which 
every religious should be possessed and would also conform to the 
saying of St. Augustine : "If not ashamed to commit the sin, then be 
not ashamed to confess it!" All this is very proper and true. But 
if, nevertheless, our religious can not bring himself to confess his 



*"Qui tamen brevi, praedicationis vel alterius negotii causa, iter suscepturus 
est, expectare potest, ut confessionem suam apud extraneum instituat." — 
(Piatus, op. cit. pag. 419, qu. 15.) 



3o6 THE CASUIST. 

sin to his proper confessor, what then ? Is there really no expedient 
that permits him to take refuge with a confessor outside of his 
Order ? 

Perhaps there is a way out of the difficulty and we believe we have 
actually found it in the cases previously cited by the canonist 
as articulus necessitatis, among which there is denoted : the necessi- 
tas impediendi ruinam poenitentis spiritualem vel consiilendi ejusdem 
saluti. Father F., as already stated, could not get himself to con- 
fess his sin to a Poenitentiarius of his Order. The danger to his 
soul's salvation in this condition is incalculable, even aside from 
the sacrilege of which he may become guilty, if he remains much 
longer in this sad state. It is not necessary to prove further that the 
articulus necessitatis, in the decree of Boniface VIII, may without 
question be applied to this case of our religious. 

Moreover, what else is the papal regulation and the constitution of 
the Order, which place our Father F, in such difficulties, but a lex 
humanaf It is, however, a well-known and universally accepted 
principle, that the obligation of such a law, at least when it is affirma- 
tive, in general ceases in case of a grave incommodum, or damnum, 
i. e., damni gravis periculum. (Lehmk. Theol. Mor. I. n. 155.) Inas- 
much as our case deals with a damnum spirituale, this principle gov- 
erns all the more. 

It is to be considered, too, that the actual aim of this papal regu- 
lation and constitution of the Order, is the bonum of the Order, as 
also that of the individual member. A confessarius extraneus is not 
so well qualified to be teacher, judge and corrector, as the religious 
confessor himself who possesses the necessary knowledge of the 
rules, constitutions and obligations of the Order, which the former 
has not, at least not so thoroughly as the latter. Now as Father F. 
in his present sad state, had most need of just such a confessor, the 



CONFESSARIUS EXTRANEUS. 307 

above regulation would really serve his bonum. But as it is impos- 
sible for him to resolve to obey the same, for the reasons stated, 
then hie et nunc this rule is no longer for him a bonum but rather 
a pericidum gravis damni and an offendiculum salutis, which is cer- 
tainly very far from the intention of the law-givers. The finis or 
causa motiva, of this regulation, so salutary in itself for the religious, 
is therefore removed in the case before us, and for this reason, at 
least in hoc casu, the legal principle may be applied : Cessante legis 
ratione cessat quoquc ejus dispositio. In other words : Father F. 
could, on this principle and for the stated reasons, confidently seek 
a priest outside his Order, at least in this case, to reveal the sad 
state of his conscience. But now arises the question : Did he require 
the permission of his superior to this end? 

In general a regular does not require the special permission of his 
superior to confess to a priest not belonging to his, or to any Order, 
except this is expressly provided by the constitution, or statutes, of 
the Order, as of course in all cases concerning Confession of regu- 
lars, in or outside the order, not only the papal regulations, but also 
the constitution or statutes of the Order must be considered if the 
regular does not wish to run the danger of confessing invalidly. 
Generally the silent permission conveyed in the concession for a 
stay outside the monastery is sufficient. A mere licentia praesumpta 
however as advocated for instance by Bonagratia {"Morales Com- 
mentarii," pag. 381), does not seem quite admissible, as from such a 
laxness in the observance of the strict papal regulation that the regu- 
lar should only confess to a regular* may easily result. 



*It is, of course, another matter, if a religious dwells away from the Mon- 
astery. In such a case he may on the strength of this dispensation, confess 
to a non-regular, and for this the sola devotio suffices according to the almost 
universal practice of our times, always provided that no restrictions are made 
by the constitution of the Order or the Superior. 



3o8 THE CASUIST. 

In the case before us our religious is privileged by the decrees of 
Clement IV, and of Boniface VIII, to confess to a sacerdos extra- 
neus, as he finds himself in necessitatis articulo, and this undoubtedly 
in the sense of the stated decrees. Whether, however, in some way or 
other a permission on the part of the superior should be required, we 
shall not decide. In praxi we should advise Father F., in order to 
be quite sure about the confession, to seek first the permission of his 
superior. A prudent and sensible superior will, at least, for single 
cases, grant such permission willingly and promptly, without going 
into the matter more closely. Should he, however, cause the petitioner 
undue difficulties in regard to this permission or if the obtaining of 
the permission is so obnoxious for the religious that it must be re- 
garded, according to moral principles, as really causing him an 
incommodum grave, then he would be justified even without the 
expressed approval of his superior, to betake himself to a confessor 
outside the Order ex jure divino, by virtue of which every Christian 
is enjoined to confess mortal sins before receiving the Holy Euchar- 
ist, or before celebrating Holy Mass. (Cone. Trid. Sess. XIII, c. y. 
et can. XI, De SS. Eucharistiae Sacramento.) In such case this 
special confessor would have jurisdiction from the Popes or the 
supreme superiors of religious, they having declared that every reli- 
gious in necessitatis casu may be absolved by an outside priest.* 

*Piatus defends this view, at least in the case when a religious, in casu 
necessitatis, is by his Superior, without sufificient reason, refused permission 
to confess extra Ordinem. This view is no doubt proper, also when a regular 
goes to a confessarius extraneiis without the approval of his Superior, be- 
cause to obtain such would be such a grave incommodum for him, that ac- 
cording to moral principles he could not be obliged to do so, or because the 
Superior himself joined to his permission such burdensome conditions (as 
for instance, requiring the petitioner to state the exact reason for the re- 
quest which would amount to a confession outside the confession) so that in 
the end the religious would have to confess outside, without permission of his 
Superior. 



CONFESSARIUS EXTRANEUS. 309 

Ad 2. Since the facultas a reservatis Ordinis absolvendi is possessed 
only by the superiors, and the Poenitentiarii authorized by them, it is 
evident that a confessor not belonging to the Order can not absolve 
from the same, unless he has previously received the necessary dele- 
gation. The latter, however, need only be a silent one, and is already 
included in the permission to confess to a Confessarius extraneus, 
ex justa et rationabUi causa, and the latter can either directly or in- 
directly absolve from the reserved offenses according as (here again) 
the constitution or the custom of the Order, or the special regula- 
tions of the superior permit. How does this apply to our case? 
Father F. has rendered himself guilty not only of grievous sin, but 
of a sin reserved in his Order. Could the secular priest to whom he 
went to Confession absolve him also from this reserved case? After 
all that has been said upon this subject the answer to this question 
can not be doubtful. This confessor could, no doubt, absolve the 
penitent religious, and that directly if he has asked his superior's per- 
mission for this Confession, even if the constitution of the Order 
to which the regular belongs should not permit such absolution, and 
this holds good without doubt likewise if the religious should not 
have obtained an expressa superioris licentia, because it would have 
been for him a too difficult incommodum. The power to absolve 
directly from the Order's reserved case would in this case, just as 
in the other, be delegated to the Confessarius extraneus a Summo 
PontiUce as the supremus Superior Ordinis, as one could not rea- 
sonably suppose that the facultas ah Ordinis reservatis absolvendi 
remains reserved for the superiors and the Poenitentiarii Ordinis even 
then if the reservation quoad Poenitentem not only not attains its 
good and salutary aim, but rather is for him in destructionem or in 
periculum gravis damni, as the case is here, if it is made impossible 
for our unfortunate religious to confess his peccatum reservatum 



3IO 



THE CASUIST. 



anywhere else except in the monastery. Our Father F., so as to be 
quite certain about the absolution a reservato, should, however, go 
to an approved priest. The reason for this has already been ex- 
plained in our discussion ad i. That the penitent should draw the 
confessor's attention to the circumstance of the reservat'on need not 
be further explained. 

Ad 3. Our argument has already answered this question. Father 
F. need not trouble himself and he may say Holy Mass without fear 
or doubt about the validity of the absolution. 



LXX. AN INVALID ABSOLUTION.* 

Mr. N. was dangerously sick ; he would not listen to admonitions 
to make his peace with God, and refused to see the priest. N.'s 
wife and the priest frequently took counsel together as to how it 
would be possible to bring about N.'s reconciliation with God, even 
in spite of his resistance. Finally the pastor resolved upon the fol- 
lowing proceeding: He secretly took up his position in an adjoining 
room, only a few feet, therefore, from the patient's bed — then 
the wife went to the sick man, purposely leaving the door ajar, so 
that the priest in the front room could hear and understand every- 
thing, whereupon she started an intimate conversation with her 
husband, apparently with the purpose of entertaining the patient, 
but in reality to draw from him an open acknowledgment of his 
sins, and to incite in him sincere contrition. Being a clever woman 
she began by speaking of one subject or another, then in par- 
ticular about how good he had been to her in every respect; then 
about the religious practices in which for a long time he had 
joined her ; of course there had been, too, some dark hours, as for 
instance, the discord which had been caused some years ago in 
puncto religionis; his constant neglect of this and that duty; then 
in order to obtain a "confession of sins," after this "examination 
of conscience," she asked gently whether he remembered so and so, 
whereupon naturally the answer was a long-drawn "Yes, that is 
right," or, "I must admit that," etc. Then she told the sick man 
how painful all this had been and still was for her, all the more 
so, as she could not banish the awful thought and harrowing fear, 
that he, her well-beloved husband, would lose heaven and go to 
eternal perdition on account of these sins, and that an awful fate 

*By P. N. Katzemich, D.D. 



312 THE CASUIST. 

would await him after death unless he was heartily sorry for them. 
By these and similar representations the good wife endeavored to 
awaken sincere contrition in the sick man, but she never said a word 
about the reception of the Sacrament of Penance, so as not to 
counteract the good disposition of her husband by arousing in him 
anew his antipathy against the religious act. The priest, who had 
heard and understood everything distinctly, believed that he might 
under the circumstances be satisfied with this confessio dolorosa, and 
gave priestly absolution to the sick man unobserved and unknown by 
the latter. The priest confidently hoped in this manner to have 
saved the sick man's soul. The question is asked whether this abso- 
lution was valid or not? To this we must answer a decided No, 
for the reason that the penitent did not have the necessary intention 
to Sacramental absolution, and because the materia proxima Sacra- 
menti was altogether absent, 

I. The absolution in question is invalid because the penitent did 
not have the necessary intention to receive the Sacrament. 

God gave to man reason and free will, and willed that no adult, 
i. e., no one who has attained the use of these faculties, should be 
saved without personal co-operation. Man, accordingly, must co- 
operate with grace, he must will to be saved, he must agree to it, and 
intend it. If sanctifying grace is to be imparted to him, through 
the administration of any of the Sacraments, he must agree to re- 
ceive this Sacrament, he must will to receive it, he must have the 
intentio suscipiendi Sacramentum. This intention, it is true, may 
be of different kinds, it may be actual, habitual or virtual, and either 
be had explicite or implicite; but one of these kinds of intention must 
be present, just which one is immaterial, for the validity of the 
Sacrament. 

Our patient had had none of these kinds of intention ; we are even 



AN INVALID ABSOLUTION. 



313 



aware that he had declared a positive aversion for, and actual oppo- 
sition to, the reception of the Sacrament of Penance. The peculiar 
examination of conscience and the resulting Confession were not cal- 
culated to produce a change of mind, and the contrition which his 
better half endeavored to awaken in him was rather doubtful ; in 
fact, under the circumstances, we can hardly suppose or admit of its 
presence; otherwise the immediate result would have been the 
desire for a priest, and for the reception of the Sacrament of 
Penance. At all events the contrition was not such as to offset the 
deeply inrooted aversion, and therewith fades away the most im- 
portant ray of hope for reconciliation with heaven of the sick man. 
The absolution therefore even if given "sacramentally," was totally 
inefficient and invalid, on account of the intentio suscipiendi being 
absent. 

2. The absolution was invalid, because the materia proxima Sacra- 
menti was completely lacking. By the materia proxima we mean 
the materia which was prescribed by the Council of Trent (Sess. 
XIV, Cap. Ill) in the following manner: Sunt ant em quasi materia 
hujus Sacramenti (Poenitentiae) ipsius poenitenti actus, nempe 
contritio, confessio et satisfactio. Whether these actus poenitentis 
are to be understood as materia proxima intrinseca seu ex qua or 
merely as an extrinseca seu circa quam; in other words, whether they 
belong to the essence of the Sacrament, or are merely a conditio 
sine qua non, that we may leave here undecided; it only concerns 
us that in our case this materia was simply not present. 

Apart from the very doubtful integritas materialis, necessary 
without question, there was really no confessio, properly speaking; 
for it can not be said that the patient made a sacramental confes- 
sion of sin, i. e., that he accused himself to a prescribed confessor of 
all grievous sins committed in order to receive priestly absolution ; 



314 THE CASUIST. 

he had no idea of the priest's secret presence, nothing was further 
from his thoughts than to confess and be absolved, and he resisted 
stubbornly the sacramental Confession. No doubt whatever can 
prevail upon that score that the patient made no confessio; he 
lacked therefore a most important part of the essential matter, or, 
at least, the indispensable conditio sine qua non; hence the absolu- 
tion could not possibly take direct effect and the validity of the 
same can not be thought of. 

Furthermore, there was lacking also the satisf actio sacramentalis ; 
it was certainly not present in re : the confessor could not properly 
impose such because no confessio had taken place, and had the 
patient upon himself imposed a penance, it would not have been a 
sacramental penance. The satisfactio in voto presupposes a real 
and sufficient contrition and must de jure at least virtually manifest 
itself to the confessor; otherwise it would not be materia or pars 
materiae. Even if we could presume true contrition in our patient, 
the same did not de jure manifest itself to the confessor, and neither 
consequently a satisfactio in voto, even if present. There was, 
therefore no confessio nor satisfactio. 

The third part of the materia proxima is the true contrition which 
must also de jure be manifest to the confessor. It is not impossible, 
although highly improbable, that the sick man, in consequence 
of his wife's representations, attained a true contrition, and hence 
sufficiently disposed in regard to sanctifying grace, but undoubtedly 
he was not possessed of that particular contrition required for the 
materia proxima Sacramenti. As ?nateria, or pars materiae, the 
contrition must absolutely manifest itself exteriorly, of course 
not in se — for that is impossible — ^but in alio, i. e. in actu et per 
actum confessionis. As the patient made no confessio, his contri- 
tion, even if present as suificiens dispositio ad justiUcationem ex 



AN INVALID ABSOLUTION. 



315 



opere operato, could not possibly manifest itself to the confessor 
and for that reason could not serve as materia, or pars materiae. 
Thus there are wanting in our patient all the actus poenitentis, the 
contritio, the confessio, and the satisf actio; in short, all of the 
materia proxima Sacramenti, which according to the interpretation 
of the Scotists is the indispensable "conditio sine qua non", and 
according to the interpretation of the far more numerous body of 
other theologians a "pars essentialis ipsius Sacramenti." 

The validity of the absolution in question is, therefore, to be 
absolutely denied. 



LXXI. IMPEDITIO PROLIS * 

This unnatural sin which so greatly desecrates the sacredness of 
wedlock, unfortunately is becoming more frequent, and is propa- 
gating itself by word and print even among those circles where 
hitherto these vices were unknown. Hence the necessity of dis- 
cussing this matter. We desire to restrict ourselves to a brief state- 
ment of principles without going into the matter too closely. 

I. All moralists are unanimous in condemning this sin as one of 
the most grievous which can be committed in married life ; and this 
applies to every attempt to prevent conception in the cohabitation, 
be it with or without the use of contrivances. There is the difference 
to be kept in mind that in the first instance the wife after earnest 
remonstrance with the husband suppositis supponendis may be per- 
missive ; in the second instance, with contrivances, this is forbid- 
den absolutely. The use of contrivances rendering any conceptio im- 
possible causes the act to be unlawful from the beginning, and 
therefore intrinsecus mahis. Co-operation with the same, even if 
only material, is so intimately allied and so necessary to the sinful 
act, that it can never be permitted, except in the most extreme case, 
as some theologians even allow the maiden in the extreme case to es- 
cape by purely passive sufferance a threatened death. When, there- 
fore, the Roman Penitentiary decided that a wife be allowed for 
weighty reasons, and after previous exhortation of the husband, to 
render the conjugal duty under such conditions, it is always to be 
understood only in the first sense, as then the act in the beginning is 
legitimate and becomes an abuse of marriage only through the hus- 
band's fault. Indeed, for important reasons, under the same condi- 
tions the wife may even claim her conjugal rights; her right is in- 
*By W. Stentrup, SJ. 

316 



IMPEDITIO PROLIS. 317 

contestable, and with regard to her husband's sin she remains disap- 
proving and purely permissive. 

2. We shall now view the matter in its direct relation to the 
confessor. There are these three possibilities : 

(a) A penitent either does not mention the sin at all, or (b) 
he inquires about its nature and gravity, or (c) he confesses the 
same as a grievous sin. 

(a) If the penitent says nothing in regard to this sin and the 
confessor has no reason to suspect it, he must not put any ques- 
tions. If, however, he has reason to believe the penitent enmeslied in 
this sin, and at that without bona fides, it is evident that he is bound 
in conscience to clear up the case by prudent questioning ; otherwise 
he would seriously fail in his office as judge in the tribunal of 
Penance. Should he, however, judge the penitent to be in bona Me, 
then the answer of the Sacred Penitentiary of the loth of March, 
1886, may serve as his guide. The question in this instance was 
asked in order to remove a doubt remaining after a previous 
answer, and to bring about among confessors a uniformity of pro- 
cedure. The question was originally put as follows : Quando adest 
fundata suspicio poenitentem, qui de onanismo omnino silet, Jiuic 
crimini esse addictum, num confessario liceat a prudenti et discreta 
interrogatione abstinere eo, quod praevideat plures a bona Ude ex- 
turbandos multosque Sacramenta deserturos esse? An non potins 
teneatur confessarius prudent er ac discrete interrogaref Sacra Poc- 
nitentiaria, attento vitiwn infandum, de quo in casu, late invaluisse, 
ad proposita dubia respondendum censuit, prout respondet: Regu- 
lariter negative ad lam partem; affirmative ad 2am partem. 

The Sacred Penitentiary prescribes therewith plainly the proper 
procedure, and states the reason : attento vitii.m infandum late in- 
valuisse. 



3i8 



THE CASUIST. 



But we must not overlook the word "regulariter." Ordinarily 
we must follow the given instructions ; an exception is however not 
excluded, and is really bona fides present, if the warning promises 
no result and if the omission of the warning is not likely to have 
evil consequences, then there applies to this matter what moralists 
teach in relation to other matters. 

(b) If the confessor is consulted about the sin and about its 
gravity he must give a truthful and clear answer, otherwise he will 
become accessory to another's sin. 

(c) What if the sin is properly confessed? In this connection 
the following case is brought to our attention : A woman has con- 
fessed this sin and to the remonstrance of the confessor she replies : 
"My husband and I confessed the sin to a missionary and he said 
nothing about it. My husband's regular confessor likewise never 
said anything about it, hence we concluded that the matter was not 
so very serious." What is to be said about the action of these con- 
fessors ? 

In answering this question we return to the above-mentioned 
reply of the Penitentiary. The matter was again submitted in the 
following form: 

An confessarius, qui sive ex spontanea confessione, sive ex pru- 
denti interrogatione cognoscit, poenitentem esse onanistam, teneatur 
ilium de hujus peccati gravitate aeque ac de aliorum peccatorum 
mortalium nionere, eumque, ut ait Rituale Romanum, paterna caritate 
reprehendere atque absolutionem tunc solum impertiri, cum suificien- 
tibus signis constet, eundem dolere de praeterito et habere propositum 
non amplius onanistice agendi. Respondetur : Affirmative juxta doc- 
trinas probatorum auctorum. 

Our authorities, it is true, do not demand that the confessor must 
exhort the penitent in the case of each individual sin properly con- 



IMPEDITIO PROLIS. 319 

fessed, and that he assure himself expressly about contrition and 
resolution in the case of each of them; but they do demand unani- 
mously the truly probable (morally certain) determination of the pen- 
itent's disposition. For this reason they require a special treatment of 
habitual sinners and of relapsers. If in our matter the penitent be- 
longs to one of these classes, which is generally the case, then the 
confessor must satisfy himself concerning contrition and resolutions 
in regard to this particular offense. We will not deny that there may 
be individual cases, in which the confessor is morally certain as to 
the disposition of the penitent, and fears by citing this special sin, 
not fully realized by the penitent to be a grievous sin, to shake his 
good resolution present, and make it doubtful. Prudence will then 
counsel him to avoid the temptation which a specification of this sin 
would be for the frail sinner. As a matter of course the penitent 
must by no means be given the false impression, through the con- 
fessor, that his action be no sin, or not a grievous sin. 

It often seems to us that if we would take a firmer stand for the 
law of God, with more confidence and greater apostolic candor, it 
would be also of great benefit in this matter. Of course we must not 
impose what is not an actual obligation ; but, in an evident violation 
of the divine commandments, to beat about the bush will give the 
impression as if it were man's law and not God's law, which par- 
alyzes the authority of God's representatives, and disturbs in the 
penitent the supernatural idea. 

Unfortunately physicians only too often are our opponents in 
this matter, and by their professional advice they make things exceed- 
ingly difficult for us. Then let us tell the penitent: "It is God's 
commandment; the observing of the same in this case may be hard 
and a great sacrifice, but God promises grace and heaven 'to those 
who obey.' " In short : Suaviter in vtodo, fortiter in re. 



LXXII. A SICK PERSON CONVERTED THROUGH 
HYPNOTIC SUGGESTION * 

In the hospital at X. there was a very sick man, whom the physi- 
cians had given up. According to their diagnosis, he had at most 
only two more days to live. The graveness of the situation had been 
explained to the patient, but in spite of all the hospital chaplain 
found himself unable to induce the patient to receive the last Sacra- 
ments. He was stubborn and there was no use arguing. The zeal- 
ous chaplain had just left the room after another vain attempt, made 
in the presence of the two attending physicians, to convert the un- 
fortunate man. One of the physicians was a clever hypnotist, and 
had already alleviated our patient's suffering many times by hyp- 
nosis. He had just been about to put the patient once more in hypnotic 
sleep when the chaplain came. Hardly had the latter left the room 
when the physician approached the sick man's bed and put him 
gently to sleep. When, however, hypnosis had entered the physi- 
cian suggested to the sick man, after some soothing thoughts, the 
firm determination in five minutes after his awakening to have the 
chaplain called and to receive the last Sacraments, with a sincere 
and contrite heart. The doctor hastened the procedure and after 
hardly two minutes he caused the patient to awaken. As usual 
after a hypnotic sleep, the latter expressed his gratification at the 
relief from his pains. But not only that. Exactly five minutes 
after waking he glanced around the room looking for the chaplain, 
and had him sent for. The latter responded, and the patient asked 
to receive the last Sacraments. The surprise and inward joy of the 
good priest may be imagined. Without any trouble the priest at- 
tended to the man, and by the following morning the latter had 
*By P. N. Katzemich, D.D. 

320 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 321 

journeyed into eternity. What are we to think of this strange con- 
version ? In other words : ( i ) Did the patient receive the last Sac- 
raments vahdly? (2) Would the priest have been allowed to ad- 
minister the Sacraments, if he had been told of the hypnotic charac- 
ter of the process of conversion? (3) Was the physician allowed to 
hypnotize the sick man and (4) was it proper to suggest the idea 
of conversion? We will answer these four questions one by one. 

I. Did the patient receive the last Sacraments validly, i. e., with 
profit ? 

Unfortunately we can not answer this important question unqual- 
ifiedly in the affirmative. The objective fact is not clear enough. 
The chaplain had no idea of the hypnotism that had taken place, nor 
of the hypnotic suggestion of conversion ; he therefore regarded the 
sick man's conversion as genuine, without examining further into 
the matter. The physician, however, believed that his suggestion, 
had succeeded ; he was pleased to have rendered the patient ai 
good service in this manner, and to have enriched the science of 
hypnosis by an interesting experiment. He gave no thought to the 
question of validity of the Sacraments so received. The thought 
that the attitude of the patient might perhaps be independent of the 
suggestion of conversion did not enter his mind. Thus it happened 
that he, neither, examined more closely into the real facts. The 
sick man, feeble and exhausted, said no more about his "conver- 
sion." Had he been asked in his normal condition whether he had 
become converted and why, or how he came to think of sending 
for the chaplain, and receiving the last Sacraments, then the true 
condition of affairs would certainly, or at least in all probability, 
have been ascertained. 

As the case is, there is nothing left for us but to reckon with 
probabilities, and to say that the patient probably, most probably, 



322 THE CASUIST. 

indeed, received the last Sacraments validly, that is to say with 
profit. 

First of all, the suddenness and unexpectedness of the conver- 
sion must not be allowed to startle us. A man may be a hardened sin- 
ner and reject all priestly assistance, and nevertheless become all at 
once a ready penitent. God has in His power also the heart of 
the perverse man, and knows how to lead and stir it in such manner, 
that against all human expectations, it heeds the divine call to 
grace, and instantly forsakes the path of sin. Examples of this 
kind are offered us in the repentant thief upon the cross, St. Paul 
the apostle, and many other saints. 

Against this there arises the justifiable doubt of the validity of 
the Sacraments as soon as we bring the sudden and unexpected con- 
version in connection with the preceding hypnotic state and the 
suggestion "to send for the chaplain five minutes after awakening, 
and to receive the Sacraments." 

It is well-known that hypnotism transports the subject into an 
irresponsible state of mind; the same holds good for the so-called 
post-hypnotic hallucinations, i. e., for that state in which the hyp- 
notized person at a fixed time acts upon a suggestion received 
during the hypnotic state. The physician, on his part, had done 
everything to produce just such post-hypnotic state, and it looks 
very much as if with success. 

There arises consequently, the question whether the patient in 
casu was of sane mind or not when receiving the Sacraments. If 
he was, then he received the holy Sacraments validly, and with 
profit ; if he was not, then his conversion was an unconscious ex- 
terior act, and an unwilling one, an actus hominis, the value of 
which can not be thought of. It is not impossible that through hyp- 
notic suggestion a man may be brought even against his will to send 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 323 

for a priest, to request of him the last Sacraments and exteriorly to 
do everything that the idea suggests virtually and formally. In 
our patient it is of course remarkable and strange that his actions 
after the hypnotic sleep corresponded so exactly to the hypnotic 
suggestion ; exactly five minutes after awakening from the hypnotism 
he caused the chaplain to be called and asked him for the Sacra- 
ments. Moreover, it is apparent that the suggested alleviation of 
pain was really accomplished, for the patient spoke of an allevia- 
tion that had taken place. The physician, however, had suggested 
both, the idea of alleviation and the one of conversion at one and 
the same time, so that the accomplishment of the one leads us to 
infer the attainment of the other. Furthermore, as at short terms 
even apathetic suggestions succeed, as experience proves, and in 
our case the time was only five minutes, the suggestion of conversion 
may actually have been considered a success. Besides, the diametri- 
cally opposed behavior within a few minutes of the patient in regard 
to one and the same idea is most plausibly explained by regarding 
his first attitude as the conscious one; the second, on the contrary, 
as unconscious, therefore an involuntary and irresponsible one. 
These are the chief arguments that can be advanced for the patient's 
unsound state of mind. They are not irrefutable, although we can 
not deny to them some probability. Let us place against these 
arguments the evidence that would point to a normal state of mind. 
First of all, it is very doubtful, and not very probable, that the 
suggestion of the idea of conversion actually succeeded. It is a fact 
vouched for by medical science, that a great number even of such 
subjects as are particularly good "media" are far from being suscepti- 
ble to all sorts of hypnotic suggestions ; for the most part they re- 
spond only to sympathetic ideas, i. e., such are agreeable to their 
tastes, to their sense of honor, to their conscience, or their tempera- 



324 



THE CASUIST. 



ment. The idea of conversion was extremely distasteful to our pa- 
tient ; he had obstinately resisted it all the time up to about seven min- 
utes ago ; he detested it, and would go to perdition rather than sub- 
ject to it. We may, therefore, suppose that he had not received it at 
all. The speedy and superficial manner of the suggestion gives support 
to this argument. Experience teaches that the hypnotist must 
usually suggest an obnoxious idea repeatedly in order that it may 
be entertained, two, three, four times; indeed there have been in- 
stances where it was necessary to repeat fifty and sixty times before 
it succeeded. With our patient there was no repetition nor an at- 
tempt at special emphasis. Again, there appear as a rule more or 
less violent signs of reluctance as a result of distasteful sugges- 
tion; the subject resists, and struggles against it by word and de- 
meanor, and if the suggestion is further urged, the subject not in- 
frequently falls into fits. There was not the slightest excitement 
apparent in our patient. He offered no objection, he showed no 
displeasure. Hence it appears that he remained unresponsive to 
the idea of conversion, and that he was in no wise moved by it. 

The suggestion as such seemed, therefore, unsuccessful ; there- 
with, too, the injurious influence of the suggestion upon the mind 
was removed, or rather was not present. 

Another reason for assuming a normal mind is found in the fact, 
that the compliance with a successful suggestion is completely pre- 
vented by a contrary psycho-physiological nature of the subject. 
The received suggestion operates adequately only when its original 
relation to the nervous system remains unchanged. With our 
patient, not even the reception of the suggestion as such can be 
shown with certainty ; still less its efficaciousness. 

On the other hand, however, the approach of death was probably 
not without a special influence upon the nervous system and ideas of 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 325 

the patient ; so that a complete failure of the suggestion may well 
be supposed. In that case the patient's state of mind was, of course, 
not at all influenced by the idea suggested. 

The efficacy of the simultaneously suggested alleviation of pain 
does not prove a great deal ; it is not even certain that this allevia- 
tion was actually to be ascribed to the suggestion; many sick 
persons feel stronger and better just before death without any 
suggestion whatsoever. Furthermore, the idea of alleviation is 
distinctly different from the idea of conversion, and stands in an 
opposite relation to the patient ; he cherishes the one idea, and hates 
the other; from the success and efficacy of the one does not at all 
follow the efficacy of the other. The experience of hypnotists con- 
firms this. 

Finally, we must remember that hypnotic, or post-hypnotic, hal- 
lucinations do not always preclude a conscious state of mind. Even 
in natural sleep we make a distinction between light and sound 
sleep, and only in the latter the conscious state of the mind is ab- 
sent. It is similar in hypnotism, its influence upon the subject's 
mind stands in proportion to the efficacy of the idea suggested, and 
this again upon the disposition of the nervous system and the skill 
of the hypnotist. The fact of positive disobedience, righteous in- 
dignation, and open contradiction of many subjects to whom are 
made silly or unlawful suggestions, proves that subjects have in 
their hypnotic sleep a flickering of consciousness and hence a mo- 
mentary sound state of mind ; at least those signs of reluctance are 
not always and solely attributable to the "natural instinct!" Even 
if we would in the case of our patient acknowledge the success of the 
suggestion itself and of the working of the suggestion, there will 
still remain a well-founded doubt as to whether and to what degree 
consciousness was disturbed. 



326 THE CASUIST. 

His action is more easily attributed to a conscious and deter- 
mined change of will than to post-hypnotic hallucination. To the 
working of the hypnotic suggestion there were opposed considerably 
greater difficulties than to a sudden conscious change of mind. In 
the latter case it only required a motio congrua of divine grace to 
change the will; in the former, a motio congrua of the hypnotist, 
which under the circumstances was hardly possible. 

In view of these reasons, speaking for the sound state of mind of 
our patient, we are justified in saying that the greater probability 
points to the intrinsic genuineness of the "conversion." It appears 
therefore to have been a conscious, interiorly willed and freely con- 
templated act rather than an only apparent and mechanical one. Did 
however, the sick man in those moments act as a free-willed man, 
then he in reality has complied with all the conditions required for 
the validity, i. e., the fruitful reception of the holy Sacraments; he 
had the intention of receiving the Sacraments ; he was sorry for 
his sins, and confessed them formally ; and, therefore, the Sacrament 
of Penance was validly received and consequently fruitful ; the 
same is to be said of the Holy Viaticum and Extreme Unction, as 
in regard to them there are offered no other difficulties. 

2. Was the chaplain allowed to administer the Sacraments to the 
patient, had he been aware of the hypnotic suggestion of conver- 
sion ? 

We answer in the affirmative. Sacramenta propter homines, say 
the theologians. One may and must administer those Sacraments 
absolutely or relatively necessary for man's salvation, to the pa- 
tient, so long as there is some probability for their valid reception. 
As we have seen, such a probability was actually present in casu. 
Of course the chaplain properly considering a possible invalidity and 
consequent danger of irreverence to the holy Sacraments, would 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 327 

have given absolution conditionally ; for "certum est quod casu quo 
adest extrema proximi necessitas, et non habeatur materia nisi dubia, 
tunc minister non solum potest, sed tenetur sub gravi sacramentum 
ei ministrare sub condition c," says St. Alphonsus (Theol. Moral. 
I. V. Tr. I. n. 39). 

The consideration that the chaplain should not thus participate 
consciously in a hypnotic experiment, is of little import here. For 
the chaplain would have participated in casu only materially, 
but not formally, in the hypnotic experiment, as he would not have 
come on account of the experiment, but in order to save, if possible, 
the soul of the hypnotized for heaven. Furthermore the deliberate 
participation in hypnotic experiments can not be condemned as ab- 
solutely unseemly or sinful. There are cases where hypnotism is 
lawful ; and in these one may lawfully participate. 

3. Was the physician allowed to hypnotize the patient? 

This question can not be confirmed unconditionally. Hypnotism 
has been vehemently combated ; it has been condemned as injurious 
to health, and as unlawful ; in this manner it has been presented, for 
instance, in the Civitta Cattolica, 1886, and in P. Franco's, S.J., 
L'ipnotismo tomato di moda, Roma, 1886; on the other hand, how- 
ever, there have not been wanting earnest and able advocates ; as for 
instance P. Coconnier, O.P., in L'hypnotisme franc, Paris, 1898, 
Xllme edition. The supreme ecclesiastical tribunal answered to the 
question, as to whether life-magnetism be lawful, in a rescript of 
June 23, 1840, that it is "not forbidden, if all deceit and supersti- 
tion, expressed or silent invocation of Satan, and immoral aims, 
are excluded." That which went under the name of life-magnetism 
in the middle of last century, bears in our days the name of hyp- 
notism. The Sacred Congregation Inquis. therefore does not pro- 
hibit hypnotism as such. One should compare this with the decision 



328 THE CASUIST. 

of the Holy Office, of 28th July, 1847, ^"^ the papal encvclical to the 
bishops, of the 4th August, 1856, also the answer of the Holy Office, 
of 26th July, 1899, in which it is decreed in reference to a physi- 
cian taking part in medical application of hypnotism in the case of 
sick children : Quoad nova experimenta, si agatur de factis, quae 
certo naturae viris praeter grediantur , non licere; si vero de hoc du- 
hitetur, praemissa protestatione, nullani partem habere vclle in pactis 
praeternaturalihus, tolerandum, mode absit periculum scandali. 

It must be conceded that in hypnotism very remarkable and 
strange phenomena appear, but all these are by no means a cri- 
terion of diabolical influence. Calm research and psycho-physio- 
logical science have an explanation in a purely natural way of most 
hypnotical phenomena hitherto known. The susceptibility of the 
nervous system for exterior influences, and the close alliance of soul 
and body, form a sphere in which the ability of the hypnotist is 
enabled to work amazing things, without in any manner needing the 
co-operation of spirits. 

Unfortunately it is true, that hypnotism has many times injured 
the health of subjects, either through the weakening of the memory, 
of the reason, or of the will power, or by producing diseased condi- 
tions. The culpability for these lamentable conditions, however, 
rests almost always upon the imprudence and awkwardness of the 
hypnotist who hypnotizes persons without proper regard to their 
psychical and somatical condition. If hypnotists would set to work 
more cautiously and conscientiously, and if they would not put the 
subjects in sleep too often nor too long, if they would not vex them 
with distasteful suggestions, then the evil after effects would either 
altogether cease or at least grow perceptibly less. At any rate 
injury to health is not necessarily a result of hypnotism and it has 
not been proven that hypnotism as such is detrimental to health. 



CONVERSION THROUGH HYPNOTIC SUGGESTION. 329 

Although it may be advisable to be somewhat skeptical in ac- 
cepting the triumphal reports of the advocates of hypnotism, yet it 
can not be denied that hypnotism has secured a prominent place 
in the medical science. It is claimed that much good has been 
already done with its aid and that it has either removed, or at least 
alleviated diseased conditions. It is argued that it would be un- 
just to condemn it as the sworn enemy of the human race, and to 
banish it from ofif the earth. Still, this commendation of hypnotism 
must be greatly modified. The injuries which hypnotism works or 
may work are so numerous and so great, that from the standpoint of 
common sense alone, it must be designated as unlawful and improper. 
It is easily understood why the medical faculty of Vienna, the 
health boards of Milan, and of Rome, the College of Medicine at 
Brussels, the international Congress for experimental and thera- 
peutical hypnotism at Paris (1889) and others, recommended to 
their respective governments the prohibition of public demonstra- 
tions of hypnotism, which was usually done. And it would be pro- 
per, too, if so-called scientific application of hypnotism would 
be entirely forbidden. Exception might be made in cases where 
hypnotism is employed for healing purposes, and this only on the 
following conditions : ( i ) That no other remedy was known or 
available; (2) That the probable harm would be exceeded by the 
benefit to be gained; (3) That it be applied by an experienced and 
conscientious physician, precluding all risk and misuse ; (4) That the 
patient agree to it. Such case will not easily present itself. For this 
reason the use of hypnotism is mostly considered by the authorities 
as unlawful (cf. Ballerini-Palmieri, Villada, Bucceroni, Aertnys, CI. 
Marc, etc.) ; while others permit its use as a specific under the 
restrictions as above-mentioned (cf. Lehmkuhl, D'Annibale, Ojetti, 
after D'Annibale and Lapponi, Noldin). 



33° 



THE CASUIST. 



The person who lets himself or herself be hypnotized, surren- 
ders to the will of the hypnotist for the term of the hypnotic sleep and 
the latter may do as he pleases with the subject; it is also unlawful 
to renounce reason and free will as done in hypnotism. These are 
the chief arguments against hypnotism besides those dealt with 
above. When reading the accounts of what hypnotists have at- 
tempted with sleeping subjects, one is inclined to pray, "From the 
evil of hypnotism deliver us." Revolting abuses have been per- 
petrated in this particular. This is not the place to go into details; 
we refer to the authors above quoted. 

The answer to the third question is thus given and supported by 
facts. 

If the doctor had really put the patient in hypnotic state it 
remains to answer the last question : 

4. Was the physician allowed to suggest conversion to the patient ? 

The physician could not know whether the suggestion of con- 
version would produce harmful excitement of the nervous system 
in our patient, and thereby an aggravated condition. He went to 
work with all necessary caution and gentleness, and he did not 
worry the sick man by repeating the suggestion. It was permissible 
to venture something in this case, for the salvation of the patient's 
soul was of more importance than his somatic condition. 

Nor was consideration of the doubt of validity of the Sacraments 
an obstacle; for the suggestion of conversion did not surely cause 
invalid reception, it did not even contain an absolute danger to 
the validity; moreover the Church has not yet prohibited sugges- 
tions of this kind. The physician's action can thus be approved of; 
he was allowed to suggest to the patient in a hypnotic state. Five 
minutes after awakening from the hypnotic sleep to call for the 
chaplain and ask him for the last Sacraments. 



LXXIII. AN EXPLANATION OF THE WORDS : " NEMO 
IN UTERO MATRIS CLAUSUS BAPTIZARI DEBET." * 

In the Roman Ritual we find among the instructions preceding- 
the baptismal rite (tit. 11. cap. I. n. i6), the direction: Nemo in 
utero matris clausus baptisari debet. This sentence may attract 
notice, as it appears to contradict that which now is universally- 
taught in moral and pastoral theology. 

There may be asked two questions, viz. : i. Is it allowed, or even 
an obligation, to baptize an infant still in the mother's womb, if 
otherwise there is danger of the infant dying without Baptism ? And 
presuming that by such Baptism the applicatio materiae was possi- 
ble, and that also the forma was correctly used, the second question 
would be: Is such Baptism valid? 

It is universally taught at present, in regard to the first question, 
that it is allowed, and even obligatory, in a case of necessity to bap- 
tize the infant in the mother's womb. The second question Gury 
answers: (Theol. Mor. pars II. n. 239): Affirmative probabilius, 
si puer attingatur aqua in utero matris medio aliquo instrumento, 
quia talis infans, cum existat iam homo viator, valide potest bap- 
tizari. Considering the matter theoretically, I think a more posi- 
tive statement should be made as follows : Such Baptism is without 
doubt valid, provided the applicatio materiae properly took place. 
For with this provision I see no reason why the validity of the Bap- 
tism can be at all doubtful. "Subjectum enim baptismi est ofnnis 
homo viator nondum baptizatus." In these cases, however, it will 
generally remain somewhat uncertain whether the applicatio mate- 
riae properly took place, and for this reason already there would 
pro praxi be advisable a conditional repetition of the Baptism if 

*By J. Rieder, D.D. 



332 



THE CASUIST. 



the infant subsequently be born alive. This is indeed decreed by a 
decision of the Sacred Congregation, of the 12th July, 1794, in 
which the conditional repetition of a Baptism administered in the 
womb is ordained in these words: Foetus in utero supra verticem 
baptizatus, post ortum denuo sub conditione baptisetur. 

If, however, the conditional repetition of the Baptism would be 
argued by appeal to the sentence : Qui natus non est, non potest 
renasci, i. e., in order that one may be re-born, he must first of all be 
born, we can not agree with this argument for intrinsic reasons, 
and we will show below how this sentence, frequently met with 
in ancient writers, has frequently been misunderstood. 

With a clearness and precision all his own, Lehmkuhl thus ex- 
presses himself (Theol. Mor. II. 74) : Vix dubitari potest de valore 
baptismi infanti in utero matris collati, si infantis caput a secundina 
omnino solutum sive medio instrumenti sive aliter aqua tingi po- 
tuerit. Attamen non desunt, qui putent, primo hominem debere 
membrum separatum externae societatis humanae esse, quam bap- 
tizari possit. Quapropter, etsi theoretice considerata ratio dubitandi 
de valore baptismi vix ulla suppetat; tamen quia S. C. C. 12 Julii, 
iyg4, in Sutrina, baptismum ilium sub conditione iterandum dixit, 
qui infanti tali modo collatus erat, Sanctae Congregationis auctor- 
itas nos prohibet, quominus omnino certum ejusmodi baptismum 
statuamns. Ergo in periculo omnino ita conferendus est, sed postea, 
si infans vivus ex utero prodierit, sub conditione est repetendus. 

Similarly, but more pointedly, is the matter put by the Analecta 
Ecclesiastica (of April, 1896) : Receptum, sane apud omnes est, 
posse instante partu infantem, in utero matris licet omnino latentem, 
cum. debita materiae et formae applicatione baptizari, nihilque vel 
ex Scripturis vel ex Traditione proferri, quod talem baptismum in- 
efficacem, vel probabiliter quidem, demonstret. There is, therefore, 



BAPTIZING AN INFANT IN THE WOMB. 



335 



no doubt whatever in regard to the vaHdity of such Baptism in itself. 
Before going further, we wish to comment on the words of Lehm- 
kuhl :"Si infantis caput a secundina (membrane or caul) omnino solu- 
tuin . . . aqua tingi potuerit." In order to speak of the validity 
without doubt of such Baptism, this condition is under all circum- 
stances required and indispensable. Gury, it is true, holds (1. c.) : 
Nee obstat illud quod puer adhuc involutus sit in secundina, quia 
haec est veluti pars infantis, and considers, therefore, the Baptism 
even probabilius valid, in case the infant is still enclosed in this caul. 
But here we must give ear to the physicians. The very reliable 
Dr. Capellmann (Pastoral Medicine, p. 139) ; protests against this 
view of Gury's, by reason of the results of the history of develop- 
ment. "The caul," he says, "is not at all in its totality a pars infantis. 
The caul consists, until birth, of three plainly distinguishable, even 
separable, teguments. The two inner teguments, the amnion and 
chorion, may be considered part of the infantile body, inasmuch 
as they are produced by the embryo itself. The outside tegument, 
however, the so-called decidua, originates from the mucus of the 
womb {uterus), and therefore belongs to the mother's body; and 
can not be regarded at all as pars infantis. It follows that the Bap- 
tism of an infant enveloped in this caul or veil can only be of very 
doubtful validity." 

If, however, it will be asked. Baptism in such cases, according to 
the teaching of theologians, can and must be administered puero in 
utero matris, and if no doubt can exist as to the validity of the 
Baptism itself, what meaning can be attributed to the words of the 
Rituale : Nemo in utero matris clausus baptizari debet? 

In order to give a satisfactory answer, we shall have to view 
the question from the historical standpoint. 

In the above discussion we have only learned the present teaching 



334 



THE CASUIST. 



of theologians, but it must be mentioned that to the question 
utrum puer in utero matris clausus could be baptized, the ancient 
writers gave an answer entirely different. From the time of Petrus 
Lombardus to that of Gabriel Biel ( + 1495) they all answered this 
question with one accord — negatively. They do so with recourse to 
St. Augustine, and to the part of the Corpus luris (cap. Qui ma- 
ternis dist. 4 de Consecratione), which says: "Quia qui natus secun- 
dum Adam non est, secundum Christum regenerari non potest, hide 
regula: Qui natus non est, non potest renasci." 

Let us select from the number of these writers the Angelic Doctor, 
St. Thomas. He deals with our question in the third part of his 
Summa (quaest. 68 art. 11). under the head Utrum pueri in mater- 
nis uteris positi sint haptisandi? 

First of all he states, in accordance with his method, some reasons 
which appear to favor the administration of such Baptism ; for 
instance, that the grace of Christ must be more efficacious than sin, 
and since these infants are stained with original sin, therefore it 
seems there must be a possibility of imparting to them the grace of 
Christ, by Baptism. Furthermore, it seems that such infant is part 
of the mother ; that if, therefore, one baptized the mother, all that 
within her would be simultaneously baptized. Contrary to this view, 
St. Thomas goes on to say, is what St. Augustine wrote in his letter 
to Dardanus : "Nemo renascitur, nisi primo nascatur." Sed haptismus 
est quaedam spiritualis regeneratio. Non ergo debet aliquis bap- 
tisari, priusquam ex utero nascatur; and the conclusio reads : Cum 
infantis in utero materno existentis corpus aqua ablui non potest, 
patet non posse in materno utero infantem. baptizari. Entering into 
the merit of the question itself, St. Thomas then adds : Respondeo 
dicendum, quod de necessitate baptismi est quod corpus baptisandi 
aliquo modo aqua abluatur, cum baptismus sit quaedam abutio. Cor- 



BAPTIZING AN INFANT IN THE WOMB. 



335 



pus aiitcin infantis, antequam nascatur ex utero, non potest aliquo 
niodo ablui aqua; nisi forte dicatur, quod ablutio baptismalis, qua 
corpus matris lavatnr, ad tiliwn in ventre existentem perveniat. Sed 
hoc esse non potest, turn quia anima pueri, ad cuius sanctiUcationem 
ordinatur haptismus, distincta est ah anima matris; turn quia cor- 
pus pueri animati iam est formatum et per consequens a corpore 
matris distinctum et ideo haptismus, quo mater haptizatur, non re^ 
dundat in prolem in utero matris existentem. Unde Augustinus 
. . . . Et ita relinquitur, quod nullo modo infantes in maternis 
uteris cxistentes haptisari possunt. 

Thus St. Thomas, and with him agree the theologians of the fol- 
lowing centuries ; even Billuart ( + 1757) remarks to this : Prohahiliiis 
videtur, in casu posito infantem nee licite nee valide posse haptisari. 
Est sententia omnium antiquorum et ex recentiorihus auct. Habert, 
Gotti, Tournely, Berti, etc., contra quosdam alios recentiores. 

It will not escape the reader's attention that St. Thomas and the 
other ancient theologians viewed this question differently from St. 
Augustine ; Thomas and the others considered it impossible that the 
materia haptismi could be applied to an infant in the mother's womb. 
It always occurred to them, that because of the inability to reach 
the infant, the mother would again be baptized with the intention of 
thereby imparting the grace of the Sacrament to the infant, and 
this they considered perfectly inoperative. Hence their dictum that 
infants in the mother's womb can neither be lawfully nor validly 
baptized. Progress in medical science on the one hand and experi- 
ence on the other has taught us, that it is quite possible, especially 
instante partu, and not even difficult, to apply the water of regenera- 
tion to infants in the mother's womb, and consequently the answer 
to our question has become a different one. 

For the first time this more recent view of the case is met with in 



336 THE CASUIST. 

Bid's writings, who says : Dicendum hreviter, quod in titero niatris 
puer non potest baptizari, quia in utero matris non potest lavari nee 
eontingi. . . . Si vero, ut aliquibus placet, puer adhuc latens 
in utero matris, quamvis matri coniunctus, aqua corpus eius con- 
tingente, ablueretur vel abstergeretur debita intentione et forma, 
vere puer baptizaretur et salvaretur. (In IV. dist. IV. q. 2 art. 3 dub. 
2.) 

Similarly Diana and Laymann express themselves. In the middle 
of the seventeenth century Pignatelli wrote, at Rome, in this sense, 
and he stated that the Cardinal Vicar caused a thorough examina- 
tion of the obstetrices, to ascertain if and how in these cases the 
applicatio materiae was possible. As a result of this examination the 
Cardinal Vicar adopted this new view and put it into practice. P. 
Qualdus defends this opinion most strongly and elaborately in his 
work which appeared at Padua in 1710. In an interesting and lucid 
manner Benedict XIV treats our question in his work De Synodo 
Diocesana (bib. VII. cap, 5), There is no doubt whatever, he first 
remarks, that an infant can not be baptized in the mother's womb, 
if it is impossible to apply the water, and it would be heretical to 
hold that the infant would participate in the Sacrament, when ad- 
ministered to the mother in its stead, as already explained by St. 
Augustine (lib. 6 Contra Julianum c. 5), and as St. Thomas also 
teaches. But the question, the learned Pope continues, is a different 
one ; it is : An reserato materni uteri ostio, quod puerperii initio con- 
tingit, valide baptizetur infans, cuius corpusculum, etsi nulla sui 
parte in lucem prodierit, aqua nihilominus saltern per siphunculum 
ttngi potest. It is quite remarkable, he states, how theologians 
differ on this subject, and he names those who are pro, as well as 
those who are contra. He himself sides with those who are pro tali 
baptismo and refutes the opponent's arguments. No final decision 



BAPTIZING AN INFANT IN THE WOMB. 337 

having been rendered by the Church he considers it the duty of pas- 
tors, for this reason, to instruct the midwives, that in such cases 
they should baptize conditionally, and likewise that in the event of 
the infant being born alive baptism should be conditionally repeated. 

The opponents of the lawfulness and validity of such Baptism sup- 
port their argument by two reasons. Firstly, they say, it is not pos- 
sible to apply the materia Sacranienti, and secondly they quote the 
words of Christ: Nisi quis renatus fuerit demw (John iii) and 
deduce therefrom with recurrence to St. Augustine and the Corpus 
Juris, that man must first be born before he can be regenerated by 
water and the Holy Ghost. 

As far as the first reason is concerned, that is settled by the opinion 
and experience of the physicians. In regard to the second reason, 
St. Augustine, to be sure, repeatedly advances this argument, but, 
as Benedict XIV says, the context plainly shows that the holy doc- 
tor intended only to show the uselessiiess and invalidity of a Bap- 
tism administered to the mother and intended for the infant. 

This is the purpose and the meaning of the passage of the Gratian 
Decree. This is also exactly the case with St. Thomas who, as 
shown by the quoted words, only answers in the negative sense be- 
cause he considered it impossible that the infant could be reached 
with water. The passage in St. John (c. iii) finally must be taken 
and understood in its logical sense, and an exegesis, in which the 
words are taken literally, has no value. How far from the inten- 
tion of the Church herself is such a narrow exegesis, may be seen 
by her action in presenting to our veneration, on the 31st August, a 
saint with the surname Nonnatus. We read in the Breviary also of 
St. Aloysius prius coelo quant terrae nasci visus. Should this not 
suffice, we might, as Benedict XIV (1. c.) writes, with a certain right 
consider him as natus, qui ex abditiorihus maternae alvi penetralibns 



338 THE CASUIST. 

ad uteri ostium decidit et obstetricis manibus pertractatur," Indeed 
the Church herself ordains (Rituale R. Ht. II. c. i, i6) : Si infans 
caput emiserit et periculum mortis immineat, haptizetur in capite, 
nee postea si vivus evaserit, erit iterum baptizandus. In this case, 
too, the nativitas has not taken place completely, and yet it is not 
required that this Baptism be repeated, not even conditionally. 

We believe we have proved that appeal can be made neither to 
the Holy Scriptures, nor to tradition, nor to the teaching of the 
Church, in order to argue for the unlaw^fulness and invalidity of 
the Baptism in utero matris; on the contrary, Puer adhuc in matris 
utero existens, urgente necessitate, licite et valide potest baptizari; 
debet tamen iterum baptizari sub conditione, si vivus in lucem pro- 
dierit; hoc fluere videtur ex responso S. Congregationis de dato 12 
Julii 1794. We say "fluere videtur," for this decision of the Congre- 
gation though a precedent for judging similar cases, is not a strict 
universal law, it was applied to an individual case and even if the 
physician asserted that he most certainly sprinkled the infant's head 
with water, it may still be thought that the Congregation did not 
place implicit belief in this assertion, and for this reason ordained 
the conditional repetition of the Baptism. If, therefore, some one 
should not take this answer of the Congregation to be a general 
strict command to repeat the Baptism in every case, he would not 
appear to be altogether without reason. There seems to result 
from the decision quoted the fapt that in every such case Baptism 
may be repeated conditionally. And it will be the safe way to do it 
in every case. 

We return at last to our question: What do the words of the 
Rituale mean: Nemo utero matris clausus baptizari debet, what is 
the sense of these words? It appears that these words should be 
supplemented by the apposition : absque necessitate, and the meaning 



BAPTIZING AN INFANT IN THE WOMB. 339 

would be : As a general rule it is prohibited to baptize an infant in 
the mother's womb, except in case where there exists danger that the 
infant will not be born alive, and would, therefore, die without Bap- 
tism, Yet this explanation does not seem to fit very well, for in 
the same chapter of the Rituale such emergency and extraordinary 
cases are already discussed. 

Hence we believe these words of the Rituale are to be taken in 
the meaning of the ancient writers so that they may be para- 
phrased somewhat in the manner following: Nemo in titero matris 
clausus haptizari debet, quia infans ita in utero latitans, ut nulla 
eius pars aqua tingi queat, haptizari nullo modo potest neque aliquid 
infanti prodesset, si eius loco matris corpus ahlucerettir. The Rituale 
here, still from the standpoint of the ancient theologians, only rejects 
the heretical opinion, that a child reposing entirely in the mother's 
womb may have to it imparted the grace of regeneration, by rebap- 
tizing the mother. The question, however, as at present answered 
by theologians, regarding the lawfulness and validity of Baptism 
properly administered in such an extraordinary case, the Rituale does 
not take up. 



Ceremonies; of ?|olj> Meek 

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COMPILED FROM THE 

iWemoriale JRituum 

OF BENEDICT XIII. 
By L. J. RUDISCH, O. P. 

Cum permissu Superiorum Cloth-boards, Net, Fifty Cents 

trte i^istt to life of tfje 
inborn Cfjiltr 

A Controversy Between PROF. HECTOR TREUB, M. D., 
REV. R. VAN OPPENRAAY, S.J., AND PROF. 
TH. M. VLAMING Cloth, Net $1M 

Clergymen and Physicians will find this a valuable contribution to the study 
of a vexed and delicate question. The question is thoroughly discussed, and 
all the objections which usually occur in theological treatises are honestly 
met and answered. —The Messenger. 

The awful contempt with which, in many places, the rights of the unborn 
innocents are treated, will make this work valuable to parents, physicians, and 
to priests. Horrible as was the infanticide practised in Sparta of old, sti" 
more revolting is the wholesale defiance of the fundamental law of race con- 
tinuity, as seen among many modern nations. The subject, both from a 
therapeutic and a legal standpoint, needs delicate handling, and for this we can 
recommend this discussion. —Donahoe's Magazine. 

PUBLISHED BY JOSEPH F. WAGNER 

9 BARCLAY STREET, NEW YORK 



NEW, REVISSD AND ENLARGED EDITION 

^asJtoral iWebicine 

By ALEXANDER E. SANFORD, M. D. 

Augmented by new chapters on the Fifth Commandment 
{Gynecology) i on Neurasthenia, and by a chapter on 

THE MOMENT OF DEATH 

By the REV. W. M. DRUM, SJ. 

Price, bound in cloth, net $1.50 

^fP'HE physician of souls may perform his whole duty better, 
\iU doubtless, if he is able also to combat the bodily ills 
of his flock, as they happen sometimes to come under 
his immediate notice in the discharge of his pastoral duties, 

3^xt^^ Comments; 

The newly attached chapters have added a hundredfold value to the 
book, which will prove a sturdy companion to priest, etc. 

— The Church Progress. 

A useful book for a priest's library. — The Irish Ecclesiastical Record. 

We have often heard the wish expressed for a good, reliable, up-to- 
date book on Pastoral Medicine. . . . We are glad to see that the 
expressed desire of so many who have felt such a need is at last realized. 
In tAC book before us there is set forth clearly and correctly the teaching 
of the medical profession on subjects closely allied to theology, a fair 
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flock, whether their disease be physical or mental. 

—The Homiletic Monthly. 

It touches on so many topics of great interest to the clergy that it 
seems invaluable. — The Catholic Citizen. 

A valuable adjunct to any clergyman's library. — The Catholic Mirror. 

PUBLISHED BY JOSEPH F. WAGNER 

9 BARCLAY STREET, NEW YORK 





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